                                                                                               April 1 2008


                                              05-057

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2008 MT 110


OUR LADY OF THE ROCKIES, INC.,
a Montana non-profit corporation,

              Plaintiff and Appellee,

         v.

KENT PETERSON, KATHLEEN A. PETERSON,
LISLE WOOD, PAULINE WOOD, n/k/a PAULINE
THOMAS, JONATHAN B. CLARK, VIDGIS J. CLARK,
JEFFREY A. BECKETT, JEANNINE A. STALLINGS,
JENNIFER A. KOCHEL and JILL A. JOHNS,

              Defendants and Appellants.


APPEAL FROM:            District Court of the Second Judicial District,
                        In and For the County of Silver Bow, Cause No. DV 03-208
                        Honorable Thomas M. McKittrick, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                        Gregory G. Schultz, Law Offices of Gregory Schultz, P.C., Missoula,
                        Montana

                        Shane A. Vannatta, Worden Thane, P.C., Missoula, Montana

                For Appellee:

                        J. Richard Orizotti, Poore, Roth & Robinson, P.C., Butte, Montana



                                                       Submitted on Briefs: January 16, 2008

                                                                  Decided: April 1, 2008


Filed:

                        __________________________________________
                                          Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Kent Peterson, Kathleen A. Peterson, Lisle E. Wood, Pauline P. Wood (now

known as Pauline P. Thomas), Jonathan B. Clark, and Vidgis J. Clark1 (collectively,

“Landowners”) appeal from the order of the District Court for the Second Judicial

District, Silver Bow County, granting partial summary judgment in favor of Our Lady of

the Rockies, Inc. (“OLR”). We reverse.

¶2     The parties raise a number of issues related to the easement at issue here; however,

the dispositive question on appeal is as follows: Did the District Court err in concluding

that the federal government expressly reserved a public road across the Landowners’

properties by referring in an 1896 federal land patent to a mineral survey that depicted a

road labeled “ROAD”?

                 FACTUAL AND PROCEDURAL BACKGROUND

I.     Overview of Patenting Under the General Mining Act of 1872

¶3     A brief overview of the process of securing a patent to a mining claim is helpful in

understanding the facts and issues of this case. Under the General Mining Act of 1872,2 a

private citizen may enter federal lands to explore for valuable mineral deposits.

California Coastal Com’n v. Granite Rock Co., 480 U.S. 572, 575, 107 S. Ct. 1419, 1422

(1987). If a valuable mineral deposit is located, a mining claim may be filed for a lode or


       1
         Jeffrey A. Beckett, Jeannie A. Stallings, Jennifer A. Kochel, and Jill A. Johns—
who appeared with the Petersons, the Woods, and the Clarks as defendants in the District
Court—did not file notices of appeal and are not parties to this appeal.
       2
         Act of May 10, 1872, ch. 152, 17 Stat. 91, codified at R.S. §§ 2319-2328, 2331,
2333-2337, 2344, recodified as amended at 30 U.S.C. §§ 22-24, 26-28, 29, 30, 33-35, 37,
39-42, 47.

                                            2
placer claim.3 R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1063 (9th Cir. 1997). If the

claim is perfected by properly staking it and complying with other statutory requirements,

the claimant has the exclusive right to possession and enjoyment of all the surface

included within the lines of his location. California Coastal Com’n, 480 U.S. at 575, 107

S. Ct. at 1422; Talbott v. King, 6 Mont. 76, 97-99, 9 P. 434, 435-36 (1886). The area

becomes the property of the locator and, thus, segregated from the public domain—i.e.,

the grounds within the boundaries of the location cease to be public lands when the

location is made—but the United States retains title to the land. St. Louis Mining &

Milling Co. v. Montana Mining Co., 171 U.S. 650, 655, 19 S. Ct. 61, 63 (1898);

California Coastal Com’n, 480 U.S. at 575, 107 S. Ct. at 1422; Talbott, 6 Mont. at 108, 9

P. at 442; Silver Bow Mining & Milling Co. v. Clarke, 5 Mont. 378, 413, 5 P. 570, 575

(1885). Possessory interest in the claim can be held indefinitely, provided that the annual

assessment work is performed, all necessary filings and fee payments are made, and the

valuable mineral deposit continues to exist. Independence Mining Co., Inc. v. Babbitt,

105 F.3d 502, 506 (9th Cir. 1997).

¶4     The holder of a perfected mining claim may secure fee title to the land by applying

to the United States Department of the Interior for a patent4 and complying with the

requirements of the General Mining Act and regulations promulgated thereunder.

       3
         A lode claim is a mining claim “to a well-defined vein embedded in rock,”
whereas a placer claim is a mining claim “where the minerals are not located in veins or
lodes within rock, but are usu. in softer ground near the earth’s surface.” Black’s Law
Dictionary 1016 (Bryan A. Garner ed., 8th ed., West 2004).
       4
         A patent, in this context, is “the deed of the government, state or federal, by
which it passes title to its lands.” J. Grimes, Thompson on Real Property vol. 5B, § 2725,
at 383 (1978).

                                            3
California Coastal Com’n, 480 U.S. at 575-76, 107 S. Ct. at 1422; Independence Mining,

105 F.3d at 506. One such requirement is filing in the proper land office, along with the

application, a survey and field notes of the claim made by or under the direction of the

United States Surveyor General showing accurately the boundaries of the claim, which

must be distinctly marked by monuments on the ground. See Silver King Coalition Mines

Co. v. Conkling Mining Co., 255 U.S. 151, 161, 41 S. Ct. 310, 311 (1921); see also

Waskey v. Hammer, 223 U.S. 85, 92, 32 S. Ct. 187, 188 (1912). Upon issuance of the

patent, legal title to the land passes to the patent holder. California Coastal Com’n, 480

U.S. at 576, 107 S. Ct. at 1422. Furthermore, title relates back to the date the claim was

located. United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 334-35, 26 S. Ct.

282, 286 (1906); United States v. Etcheverry, 230 F.2d 193, 196 (10th Cir. 1956);

Talbott, 6 Mont. at 106-07, 9 P. at 441. In other words, “the location of a mine is the

inception of a title, and . . . the patent, when issued, relates back to the location, and

conveys to the patentee all the interest that the government had at the time of the

location.” Murray v. City of Butte, 7 Mont. 61, 68, 14 P. 656, 657 (1887) (citing Butte

City Smoke-House Lode Cases, 6 Mont. 397, 12 P. 858 (1887), and Deffeback v. Hawke,

115 U.S. 392, 6 S. Ct. 95 (1885)).

II.   The Land and Road at Issue

¶5    The Cobban Placer, the Plymouth Rock Placer, and the Plymouth Rock Extension

Placer are three parcels of land situated side by side in the East Ridge area of Butte,

Montana.    The Cobban Placer (the westernmost parcel) was located by William F.

Cobban and William H. Lewis in 1892, and the federal government issued the patent in


                                            4
1896; the Plymouth Rock Placer (the middle parcel) was located by John T. Reese in

1889, and the patent was issued in 1900; and the Plymouth Rock Extension Placer (the

easternmost parcel) was located by John T. Reese in 1890, and the patent was issued in

1898. The Cobban Placer has since been subdivided into lots now owned by a number of

the Landowners. The Plymouth Rock Placer and the Plymouth Rock Extension Placer,

neither of which has been subdivided, are now owned by OLR. It appears from aerial

photographs taken in 2002 and included in the record that all three parcels are partially

forested, that the Cobban Placer contains a number of structures (residences and

outbuildings), and that the Plymouth Rock Placer and the Plymouth Rock Extension

Placer are largely undeveloped.

¶6     OLR plans to construct a tram, a tramway station, a parking lot, a carousel,

associated amusement park rides, and other tourism-related improvements on the

Plymouth Rock Extension Placer. The tram is intended to carry visitors up to Our Lady

of the Rockies, a 90-foot statue atop the Continental Divide overlooking Butte. Ridership

estimates for the first year of operation vary between 14,075 and 60,285 depending on a

variety of factors, including ease of accessibility (construction of an exit ramp off

Interstate 15 versus use of the existing frontage road) and marketing efforts.

¶7     At issue in this case is the specific route by which OLR would like to provide

public access to the proposed tramway station. It appears from the 1893 survey of the

Cobban Placer (Mineral Survey No. 4200), the 1897 survey of the Plymouth Rock Placer

(Mineral Survey No. 5153), and the 1897 survey of the Plymouth Rock Extension Placer

(Mineral Survey No. 5154) that a road historically traversed the Cobban Placer and the


                                             5
Plymouth Rock Placer and terminated on the Plymouth Rock Extension Placer.5

According to the field notes corresponding with these surveys, the road varied between 6

and 12 feet wide. At present, the road is paved as it enters the western edge of the

Cobban Placer. It then becomes a 12-foot-wide dirt road and remains as such until it

reaches a metal gate behind the Woods’ detached garage (about two-thirds of the way

across the Cobban Placer). Beyond the gate (i.e., heading east across the remainder of

the Cobban Placer toward the Plymouth Rock Placer), the road is an unmaintained,

single-track lane with grass growing down the middle.

¶8     The following depiction of the road in relation to the parcels and lots is provided

in the record (labels added):




       5
        OLR’s expert testified in the District Court concerning Survey No. 5154’s field
notes, which detail the courses followed and the landmarks observed by the surveyor of
the Plymouth Rock Extension Placer. The expert stated that “along the east end line” the
surveyor encountered a road headed in an easterly direction. We note, however, that the
east-end line referred to in Survey No. 5154’s field notes is “the east-end line of Sur. No.
5153,” i.e., the east-end line of the Plymouth Rock Placer (the middle parcel). Thus,
Survey No. 5154’s field notes establish that the road crossed the east-end line of the
Plymouth Rock Placer, which is the west-end line of the Plymouth Rock Extension
Placer. The field notes do not mention a road crossing the northern, eastern, or southern
boundaries of the Plymouth Rock Extension Placer, and the road is depicted on Survey
No. 5154 as terminating on the Plymouth Rock Extension Placer.

                                             6
 Interstate 15
                                                                     Plymouth Rock
                                                                     Extension Placer
                                                 Plymouth Rock
                                                 Placer ↑         ↑
                                                                 Road
                           (Clark)                    Road
           Cobban Placer                     ↑
                                       ↑  Road
                                     Road
              (Peterson) ↑           (Clark)
        ↑             ↑ Gate
       Road        Road (Wood)
            (Beckett)


III.   Proceedings in the District Court

¶9     OLR filed the instant action on September 3, 2003, seeking a declaratory judgment

that the stretch of road traversing the Cobban Placer is not a “private access driveway,” as

claimed by the Landowners, but rather a “public” road 60 feet in width “available for all

uses of a public road by the public.” In support of this claim, OLR argued the following

three theories: (1) congressional grant or dedication pursuant to § 2477 of the Revised

Statutes of the United States6 (“R.S. 2477”), (2) common-law dedication, and (3) express

reservation of a public road by the federal government when it issued the Cobban Placer

patent.7 The parties filed cross-motions for summary judgment and briefed each of these


       6
          Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at R.S. 2477,
recodified at 43 U.S.C. § 932, repealed by Federal Land Policy and Management Act of
1976, Pub. L. No. 94-579, § 706(a), 90 Stat. 2743, 2793.
        7
          In addition to these three theories, OLR raised a number of other theories during
the course of the proceedings in the District Court. In its amended complaint, OLR
alleged prescriptive use by the public; however, OLR did not pursue this theory at the
summary judgment stage. Furthermore, when OLR first articulated its reservation theory
(in its brief in support of its motion for summary judgment), OLR discussed easements

                                                 7
three theories. In addition, the Landowners argued in the alternative that if an easement

does exist for public use, the easement’s scope is a 12-foot-wide dirt road, not a “60-foot,

2-lane public highway barreling through [the Landowners’] properties.”

¶10    The District Court held a hearing on the parties’ motions on July 23, 2004, and

entered findings of fact and conclusions of law on November 24, 2004. Addressing

OLR’s express-reservation theory, the court stated that “[a]n express easement by

reservation arises when the purchaser’s deed refers to a plat where the easement is clearly

depicted” (citing Pearson v. Virginia City Ranches Ass’n, 2000 MT 12, ¶ 21, 298 Mont.

52, ¶ 21, 993 P.2d 688, ¶ 21). The court further stated that the reference to the plat “must

be sufficient to put the purchaser on ‘inquiry notice’ that the property is being conveyed

pursuant to a particular recorded document” (citing Halverson v. Turner, 268 Mont. 168,

173, 885 P.2d 1285, 1288 (1994)). In this regard, the court observed that the Cobban

Placer patent refers to Mineral Survey No. 4200 (“MS 4200”). This survey depicts the

locations, distances, and bearings of the Cobban Placer boundaries, as well as a number

of improvements and natural objects, including a ditch, a creek, a road, a ravine, a cabin,

and a railroad, all of which are labeled. The survey originally was filed in the United

States Surveyor General’s Office in Helena, Montana, on May 20, 1893, and is presently

on file at the Bureau of Land Management, Montana State Office, in Billings. Thus, the

implied from prior existing use, easements implied by necessity, and easements created
by express reservation. OLR then argued that “the federal government reserved an
implied easement across the Cobban Placer.” In response, the Landowners asserted that
“an express reservation cannot be implied.” Thus, assuming that OLR was relying on the
two implied-easement theories as well as an express-easement theory, the Landowners
addressed all three. However, OLR subsequently clarified that it was arguing an “express
easement by reservation.”

                                             8
court reasoned that “MS 4200 was recorded and accessible to the public, such that any

person with ‘inquiry notice’ could access the survey to review its contents.” In reaching

this conclusion, the court rejected the Landowners’ contention that MS 4200 was not a

“recorded” document because it was not filed with the county clerk and recorder.

¶11   As for the nature of the road depicted on MS 4200, the court concluded that it is

“public” for a number of reasons. First, the court reasoned that the Cobban Placer

“belonged” to the United States at the time it was surveyed (in 1893) and that any road on

the land, therefore, was public. Second, the court opined that at the time the Cobban

Placer patent was issued (in 1896), the road was the only ingress and egress for persons

seeking access to the Plymouth Rock Placer and the Plymouth Rock Extension Placer,

both of which still “belonged” to the federal government. Lastly, the court observed that

the road had been depicted on a number of surveys and maps over the last century, “often

times being identified as a public road.” It appears from this that the court attributed

legal significance to the label “public” where it appeared on said surveys and maps.

¶12   The District Court held that there were no genuine issues of material fact as to

OLR’s express-reservation theory and that, as a matter of law, the federal government

expressly reserved a public road across the Cobban Placer when it referred in the Cobban

Placer patent to MS 4200. As for OLR’s R.S. 2477 and common-law dedication theories,

the court determined that these two theories could not be resolved on summary judgment.

With respect to the former, the court held that factual questions remained as to whether

the public accepted the federal government’s offer under R.S. 2477 by establishing a

public highway in a manner recognized under state law. With respect to the latter, the


                                            9
court likewise ruled that factual questions remained regarding the public’s acceptance of

the alleged common-law dedication of the road to the public.          Moreover, the court

observed that the parties had “presented conflicting evidence regarding the following

issues: (1) the actual commercial or public uses of the Road, if any, and the duration of

such uses; (2) the nature and extent of county maintenance of the Road; and (3) the width

of the Road, if it is determined to be a public road or easement.” Accordingly, the court

denied OLR’s motion for summary judgment with respect to the R.S. 2477 and common-

law dedication theories.    The court also denied the Landowners’ cross-motion for

summary judgment.

¶13    The Landowners now appeal from the grant of summary judgment on OLR’s

express-reservation theory. Neither party appeals from the District Court’s denial of

summary judgment on OLR’s R.S. 2477 and common-law dedication theories.

                               STANDARD OF REVIEW

¶14    We review a district court’s ruling on a motion for summary judgment de novo,

applying the same criteria of M. R. Civ. P. 56 as did the district court. Cole v. Valley Ice

Garden, L.L.C., 2005 MT 115, ¶ 4, 327 Mont. 99, ¶ 4, 113 P.3d 275, ¶ 4. Rule 56(c)

provides that “[t]he judgment sought shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” The evidence must be viewed

in the light most favorable to the nonmoving party, and all reasonable inferences are to be

drawn therefrom in favor of the party opposing summary judgment. Redies v. Attorneys


                                            10
Liability Protection Soc., 2007 MT 9, ¶ 26, 335 Mont. 233, ¶ 26, 150 P.3d 930, ¶ 26. The

determination that the moving party is or is not entitled to judgment as a matter of law is

a legal conclusion, which we review for correctness. Hughes v. Lynch, 2007 MT 177,

¶ 8, 338 Mont. 214, ¶ 8, 164 P.3d 913, ¶ 8; Hi-Tech Motors v. Bombardier Motor Corp.,

2005 MT 187, ¶ 32, 328 Mont. 66, ¶ 32, 117 P.3d 159, ¶ 32.

                                      DISCUSSION

I.        Preliminary Matters

¶15       Before addressing the parties’ arguments, it is necessary to dispose of four

preliminary matters concerning the issues before us and the law applicable to those

issues.

¶16       First. The parties do not dispute whether OLR itself may use the roadway across

the Cobban Placer for ingress to and egress from the Plymouth Rock Placer and the

Plymouth Rock Extension Placer. In their opening brief, the Landowners state that they

“never have denied that a primitive road passes beyond [the Woods’] parcel, over the

Clark parcel, to the Plymouth Rock Placer parcels, and never have denied that the road

provides private access for the owners of those parcels.” The Landowners do not identify

the source of this private easement; however, that point is immaterial to our analysis,

since the specific dispute in this case is whether the general public may use the roadway

to access the Plymouth Rock Placer and the Plymouth Rock Extension Placer.

¶17       Second. The scope of this appeal is confined to OLR’s express-reservation

theory, which is the only theory on which the District Court granted summary judgment

and is the only theory argued by the parties on appeal. Under this theory, a public road


                                             11
across the Cobban Placer was created by express reservation in the Cobban Placer

documents of conveyance (the Cobban Placer patent, MS 4200, and MS 4200’s field

notes). Notwithstanding, the Dissent presents a lengthy argument that a public road

across the Cobban Placer was created under R.S. 2477. Yet, the District Court explicitly

determined with respect to OLR’s R.S. 2477 theory that “questions of material fact exist

and the issue cannot be resolved by summary judgment.” Neither party has appealed

from this ruling. Accordingly, OLR’s R.S. 2477 theory is an issue to be addressed by the

parties on remand, should they choose to do so; it is not an issue for this Court to decide

on this appeal. Indeed, as OLR points out in its response brief on appeal, any discussion

about R.S. 2477 is “irrelevant to this case.”

¶18    Third. The only facts that are pertinent to our analysis herein are those which

pertain to the creation of MS 4200 and to the issuance of the Cobban Placer patent and

over which there is no genuine dispute. The Dissent, however, inserts into this appeal a

number of factual matters that are irrelevant, unproven, disputed by the parties, or

contradicted by the record. For instance, the Dissent advises us that we should “examine

the development of the Road at issue,” Dissent, ¶ 102, and the Dissent then purports to do

so, opining that the road depicted on MS 4200 has been in existence and in use since

1889 when John T. Reese located the Plymouth Rock Placer, that the road constituted the

sole means of access to the Plymouth Rock Placer and the Plymouth Rock Extension

Placer, and that William F. Cobban and William H. Lewis were “familiar with” the road

when they located the Cobban Placer in 1892, see Dissent, ¶¶ 106, 108, 110, 125, 130,

135, 136, 139. These factual matters, however, are not established in the record. No


                                                12
evidence has been presented in this case as to what roads, if any, existed in 1889 and

1892 in the area which ultimately became the Cobban Placer and the Plymouth Rock

Placer and what route Reese actually used when he located his claim. There also is no

evidence in the record establishing when the road at issue was constructed, who actually

used it, and over what period of time they did so. According to the report provided by

OLR’s expert in conjunction with the results of his research, his evidence established the

existence of the road only since 1893, when the Cobban Placer was surveyed and

MS 4200 was created.8 But even if the road did exist as early as 1889, there is nothing in

the record establishing that it was made “public” pursuant to any of the methods of

creating a public road under Montana law prior to 1892, when the Cobban Placer was

segregated from the public domain. See ¶¶ 3, 5, supra; State ex rel. Dansie v. Nolan, 58

Mont. 167, 173, 191 P. 150, 152 (1920). The District Court made no findings of fact as

to any of these matters.      Indeed, the court observed that the parties had presented

conflicting evidence regarding “the actual commercial or public uses of the Road, if any,

and the duration of such uses.” Thus, the Dissent’s suggestion that these matters are

established in the record is false.

¶19    Moreover, the question at hand is not whether a public road was established over

the Cobban Placer by necessity, public use, or acceptance of a dedication to the public.

       8
        Included with the expert’s report is a Northern Pacific Railway map, dated 1890-
1914, which shows a small portion of the road. However, this map depicts the road
entering the Cobban Placer from the west, whereas MS 4200 depicts the road entering
from the northwest. According to the report and the expert’s testimony, the shift from the
northwest access point shown on MS 4200 to the west access point shown on the 1890-
1914 map occurred sometime between 1893 and 1914. In other words, the map dated
1890-1914 necessarily post-dates MS 4200.

                                            13
Rather, as explained above, the question is whether the District Court correctly

determined, as a matter of law, that the federal government created a public road by

express reservation in the Cobban Placer documents of conveyance. For this reason, the

Dissent’s dubious factual assertions, which largely relate to its R.S. 2477 argument, are

not relevant to the issue on appeal.

¶20    Along these same lines, the Dissent relies on various maps and records pertaining

to the subject properties. See e.g. Dissent, ¶¶ 111, 138. However, none of these maps

and records is referred to in the Cobban Placer patent. As a matter of fact, all of these

maps and records post-date the patent. Thus, the maps and records cited by the Dissent

are entirely irrelevant for purposes of ascertaining the federal government’s intent when it

issued the Cobban Placer patent in 1896. Again, the only documents and facts of record

that are pertinent to our analysis are those which pertain to the creation of MS 4200 and

to the issuance of the Cobban Placer patent and over which there is no genuine dispute.

¶21    Fourth.     The last preliminary matter concerns the law applicable to our

interpretation of the Cobban Placer patent. Although the Cobban Placer patent contains

an express reservation of “a right of way . . . for ditches or canals constructed by the

authority of the United States,” the patent contains no such express reservation of a

“public road” across the Cobban Placer.        Thus, OLR invokes a state-law doctrine,

articulated by this Court during the last 22 years, under which an easement may be

created by reference in an instrument of conveyance to a plat or certificate of survey

which adequately describes the easement. (This doctrine is explained in detail below.)

OLR contends that the federal government expressly reserved a public road across the


                                            14
Cobban Placer by referring in the Cobban Placer patent to MS 4200, which depicts a road

that is labeled “ROAD.” The Dissent also presents a brief argument premised on this

easement-by-reference doctrine. Dissent, ¶¶ 134-138. Yet, neither OLR nor the Dissent

cites any authority that such a doctrine existed under Montana law when the Cobban

Placer patent was issued or that parties to land transfers in 1896 even contemplated that

easements could be created in this manner. More to the point, OLR and the Dissent cite

no authority that the federal government’s intent in an 1896 land patent may be construed

pursuant to a doctrine that evolved under state law 100 years after the fact.

¶22    In this regard, the Landowners, citing Ritter v. Morton, 513 F.2d 942, 946 (9th Cir.

1975), point out that federal law governs the construction of a federal land patent and the

quantum of the premises which it conveys.         OLR responds that, pursuant to “well

established federal common law,” where lands are granted according to an official plat of

the survey of such lands, the plat itself becomes a part of the grant or deed by which the

lands are conveyed. However, the Landowners correctly point out that not one of the

federal cases cited by OLR recognizes the creation of an easement by reference in a

federal land patent to a mineral survey. Furthermore, the Landowners contend that

federal law in 1896 required a reservation to be set out expressly in the patent itself, not

divined from a depiction on a referenced mineral survey.9

¶23    Yet, at no point during this exchange does either party present a sufficiently

comprehensive analysis as to which law—federal or state—governs the construction of

       9
         The Landowners also point out that OLR’s “federal common law” theory is
raised for the first time on appeal. It was not argued in the District Court and, thus, was
not considered by the District Court in evaluating OLR’s motion for summary judgment.

                                             15
the Cobban Placer patent, and this issue is not as straightforward as the Landowner’s

citation to Ritter suggests. In United States v. Oregon, 295 U.S. 1, 55 S. Ct. 610 (1935),

the Supreme Court stated that “[t]he construction of grants by the United States is a

federal not a state question and involves the consideration of state questions only in so far

as it may be determined as a matter of federal law that the United States has impliedly

adopted and assented to a state rule of construction as applicable to its conveyances.”

Oregon, 295 U.S. at 28, 55 S. Ct. at 621 (citations omitted); see also United States v.

Pappas, 814 F.2d 1342, 1345 n. 8 (9th Cir. 1987) (“Unless Congress expresses a contrary

intention, federal patents will be construed according to the law of the state in which the

land lies.”). Thus, it appears that the threshold issue here is whether the United States

adopted and assented to a state rule of construction.

¶24    If a state rule of construction does guide the interpretation of the Cobban Placer

patent, the next issue is whether an easement—more specifically, a public road—could be

created under Montana law in 1896 by a mere reference in an instrument of conveyance

to a plat or survey depicting the easement. See Hash v. United States, 403 F.3d 1308,

1315 (Fed. Cir. 2005) (“[T]he property rights of these [land patentees] are governed by

the law in effect at the time they acquired their land.”); United States v. Gates of the

Mountains Lakeshore Homes, Inc., 732 F.2d 1411, 1413 (9th Cir. 1984) (considering the

law as it stood at the time of the land grant, i.e., in March 1901). As noted above, OLR

simply assumes that an easement could be created by this method in 1896, without

citation to a single case supporting this position. For their part, the Landowners contend

that the easement-by-reference doctrine relied on by OLR is “modern” and “does not


                                             16
apply retroactively to a century-old Federal land conveyance.” Yet, while this doctrine is

indeed of recent vintage, the notion of an easement created by operation of law to effect

the presumed intent of the grantor is longstanding. See e.g. Herrin v. Sieben, 46 Mont.

226, 234-35, 127 P. 323, 328 (1912); Pioneer Mining Co. v. Bannack Gold Mining Co.,

60 Mont. 254, 262-65, 198 P. 748, 750-51 (1921). Thus, the Landowners’ observation

that the easement-by-reference doctrine is “modern” does not fully answer the question

whether an easement could be created under Montana law in 1896 by referring in an

instrument of conveyance to a plat or survey depicting the easement.

¶25   Notwithstanding the parties’ competing assumptions as to which law applies,

however, we have determined that we need not decide these two choice-of-law issues

because we conclude, for the reasons which follow, that neither federal law nor the state-

law doctrine relied on by OLR supports OLR’s express-reservation theory.

II.   Federal Law

¶26   OLR contends that MS 4200 and the corresponding field notes are part of the

Cobban Placer patent. On this point, OLR is correct. In Cragin v. Powell, 128 U.S. 691,

9 S. Ct. 203 (1888), the Supreme Court stated:

      It is a well-settled principle that when lands are granted according to an
      official plat of the survey of such lands, the plat itself, with all its notes,
      lines, descriptions, and land-marks, becomes as much a part of the grant or
      deed by which they are conveyed, and controls, so far as limits are
      concerned, as if such descriptive features were written out upon the face of
      the deed or the grant itself.

Cragin, 128 U.S. at 696, 9 S. Ct. at 205; see also Chapman & Dewey Lumber Co. v. St.

Francis Levee Dist., 232 U.S. 186, 196-97, 34 S. Ct. 297, 299 (1914); Pittsmont Copper



                                            17
Co. v. Vanina, 71 Mont. 44, 54, 227 P. 46, 48 (1924). Here, MS 4200 is an official plat

of the survey of the Cobban Placer Mining Claim. Although the Cobban Placer patent

does not state specifically that the land is being granted “according to” MS 4200, the

Supreme Court stated in Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S. Ct. 518

(1890), that “where a plat is referred to in a deed as containing a description of land, the

courses, distances, and other particulars appearing upon the plat are to be as much

regarded, in ascertaining the true description of the land and the intent of the parties, as if

they had been expressly enumerated in the deed.” Jefferis, 134 U.S. at 194-95, 10 S. Ct.

at 522 (emphasis added). The Cobban Placer patent identifies the land being granted as

“that certain PLACER mining claim and premises, designated by the Surveyor General as

Lot No. 4200,” and it describes the land pursuant to MS 4200’s field notes. Accordingly,

MS 4200, with all its notes, lines, descriptions, and landmarks, is a part of the Cobban

Placer patent as if such descriptive features were written out upon the face of the patent

itself.

¶27       So ends OLR’s analysis under federal law. Yet, establishing that MS 4200 and the

field notes are a part of the Cobban Placer patent is far from establishing that the federal

government intended to reserve a public road across the Cobban Placer. In this regard,

the Landowners cite Leo Sheep Co. v. United States, 440 U.S. 668, 99 S. Ct. 1403 (1979),

in which the Supreme Court declined to recognize a reservation of an easement by the

federal government to build a public road across land that was originally granted to the

Union Pacific Railroad under the Union Pacific Act of 1862. This Act set out a few

specific reservations to the grant—e.g., the grant was not to include mineral lands and


                                              18
land to which there were homestead claims. Thus, given the existence of these explicit

exceptions, the Supreme Court noted that it had in the past “refused to add to this list by

divining some ‘implicit’ congressional intent.” See Leo Sheep, 440 U.S. at 678-79, 99

S. Ct. at 1409 (citing Missouri, Kansas, & Texas Ry. Co. v. Kansas Pacific Ry. Co., 97

U.S. 491 (1878)). Indeed, the inference prompted by the omission of any reference in the

1862 Act to the right asserted by the government (to build a public road across the

granted land) was that no such right had been reserved, see Leo Sheep, 440 U.S. at 681,

99 S. Ct. at 1410, and the Supreme Court stated that it was “unwilling to imply rights-of-

way, with the substantial impact that such implication would have on property rights

granted over 100 years ago, in the absence of a stronger case for their implication than

the Government makes here,” Leo Sheep, 440 U.S. at 682, 99 S. Ct. at 1411.10

¶28    OLR contends that Leo Sheep is inapplicable to this case because OLR’s theory is

one of express, not implied, reservation of an easement. Yet, OLR’s theory is that a

public road was reserved over the Cobban Placer by virtue of the reference in the Cobban

Placer patent to MS 4200, and OLR cites no authority for the proposition that a reference

in a federal land patent to a mineral survey which depicts a road labeled “ROAD” qualifies

as an “express” reservation under federal law. In any case, we conclude that the rules of

construction articulated in Leo Sheep are pertinent in construing the federal government’s

intent when it issued the Cobban Placer patent.


       10
         The Supreme Court also rejected the government’s theory of an implied
easement by necessity, noting that because the government has the power of eminent
domain, the easement was not a necessity. See Leo Sheep, 440 U.S. at 679-80, 99 S. Ct.
at 1409-10.

                                            19
¶29       Turning, then, to the language of the Cobban Placer patent, we observe that this

document contains a number of express reservations to the grant. In particular, “there is

reserved from the lands hereby granted, a right of way thereon for ditches or canals

constructed by the authority of the United States.” In addition, the patent states that

          the premises hereby conveyed may be entered by the proprietor of any vein
          or lode of quartz or other rock in place bearing . . . valuable deposits, for
          the purpose of extracting and removing the ore from such vein or lode,
          should the same, or any part thereof, be found to penetrate, intersect, pass
          through or dip into the mining ground or premises hereby granted.[11]

But there is no express reservation of a road—let alone a public road—anywhere in the

patent.

¶30       The inference prompted by the presence of certain express reservations in the

patent and the absence of an express reservation of the particular right-of-way alleged by

OLR (a public road) is that no such right-of-way was reserved. Leo Sheep, 440 U.S. at

681, 99 S. Ct. at 1410. Indeed, on this point, the Landowners direct our attention to Hash

v. United States, 403 F.3d 1308 (Fed. Cir. 2005), where the land patents at issue reserved

to the United States certain specified rights (namely, previously vested and accrued water

rights, previously granted mineral rights, and rights-of-way for ditches or canals) but did

not mention the right alleged by the government (a reversionary interest in land

underlying discontinued railroad rights-of-way). See Hash, 403 F.3d at 1314. The Hash

court refused to imply a reservation of this right in light of “the well-recognized rule that

          11
         This provision or language similar thereto, which appeared in a number of land
patents during this period, has been characterized as an “express reservation.” See
Montana Mining Co. v. St. Louis Mining & Milling Co., 183 F. 51, 61 (9th C.C. 1910);
see also Waterloo Mining Co. v. Doe, 82 F. 45, 50 (9th C.C. 1897); Montana Co. v.
Clark, 42 F. 626, 628-29 (C.C.D. Mont. 1890).

                                               20
property rights that are not explicitly reserved by the grantor cannot be inferred to have

been retained.” Hash, 403 F.3d at 1314. The court observed that the Supreme Court “has

consistently preserved the integrity of the land grant patent” and “has required that unless

a property interest was expressly reserved by the government, whether in the patent grant

or by statute or regulation then in effect, the disposition of the land was in fee simple.”

Hash, 403 F.3d at 1315-16. These principles compel the same conclusion in the case at

hand, namely, that the United States did not reserve a public road over the Cobban Placer.

¶31    OLR points out, however, that the reservation in the Cobban Placer patent for

ditches or canals was required by 43 U.S.C. § 945 in all patents for lands taken up after

August 30, 1890. But this only confirms that when the federal government wishes to

include an express reservation in a patent, it is perfectly capable of doing so. OLR

suggests that the United States would not have reserved an easement for public roads “in

every patent.” But surely, had it wished to do so, Congress could have required that an

express reservation of public roads be included in all patents under particular

circumstances—e.g., when a road already existed across the mining claim at the time the

claim was surveyed. Again, no such express reservation appears in the Cobban Placer

patent, which compels the conclusion that no public road was reserved.

¶32    Nevertheless, OLR maintains that the reference in the patent to MS 4200, the

depiction on MS 4200 of a road labeled “ROAD,” and the descriptions of this road (its

width, location, and course) in the field notes demonstrate the federal government’s

“clear intent” to reserve a public road. Yet, according to the 1890 Manual of Surveying

Instructions for the Survey of the Public Lands of the United States and Private Land


                                            21
Claims, surveyors were required to note a wide variety of objects and data during a

survey, including creeks, ponds, ravines, improvements (e.g., cabins, groves, forges),

natural curiosities, and “[r]oads and trails, with their directions, whence and whither.”

The purpose of these notations is made clear in the Surveyor General’s certification on

MS 4200:

      The Original Field Notes of the Survey of the Mining Claim . . . known as
      the Cobban Placer from which this plat has been made under my direction
      have been examined and approved, and are on file in this office, and I
      hereby certify that they furnish such an accurate description of said Mining
      Claim as will, if incorporated into a patent, serve fully to identify the
      premises, and that such reference is made therein to natural objects or
      permanent monuments as will perpetuate and fix the locus thereof.
      [Emphases added.]

¶33   Given these stated purposes of MS 4200’s field notes, we conclude that the intent

behind describing the road therein and depicting it on MS 4200 was to aid in the

identification of the Cobban Placer and to fix the locus thereof. It is inconceivable that

the federal government intended to reserve for public use every creek, trail, cabin,

mineshaft, ravine, railroad, and so forth depicted and labeled on a mineral survey.

Indeed, OLR’s argument overstates the function and authority of the Cobban Placer

surveyor. See e.g. State v. Crawford, 441 P.2d 586 (Ariz. App. 1968). In Crawford, the

government argued that a surveyor’s notation of a public right-of-way on a survey plat

referred to in the landowner’s patent was tantamount to an explicit reservation or

exception in the patent itself and that the landowner was bound thereby. Crawford, 441

P.2d at 588, 589. The court rejected this argument outright, stating that the existence of

the right-of-way in question depended on the pertinent Arizona laws regarding the



                                           22
establishment of highways. Crawford, 441 P.2d at 589. The court further observed that

the force of the government’s argument was “broken by well-settled limitations imposed

on the function and authority of a surveyor. . . . While the reference to the plat of this

surveyor undoubtedly has bearing upon the legal boundaries of the tract of land

conveyed, this plat cannot determine the legality of the right-of-way here in dispute.”

Crawford, 441 P.2d at 589.

¶34    Furthermore, it is highly improbable that the United States would reserve a public

road to access two mining claims—the Plymouth Rock Placer and the Plymouth Rock

Extension Placer—that had already been located and, thus, segregated from the public

domain. See ¶¶ 3, 5, supra. Indeed, the testimony of OLR’s expert on this point is

consistent with our conclusion. At the hearing, the District Court inquired whether, “if

there’s a map that says ‘road,’ does that give you an indication that the public has access

to that?” In response, the expert testified: “No. In that particular case, the only access

that would be a public road is if it was public lands on both sides that the road was

traversing through, and at the time it was dedicated, it was accessing public lands on both

sides.” As just noted, the Plymouth Rock Placer and the Plymouth Rock Extension

Placer had already ceased to be public lands by 1893 when the Cobban Placer was

surveyed and MS 4200 was created. According to the interpretation offered by OLR’s

expert, therefore, the label “ROAD” on MS 4200 is not indicative of a public road. For

these reasons, we do not agree with OLR’s assertion that the Cobban Placer patent,

MS 4200, and the field notes, taken together, demonstrate a “clear intent” to reserve a

public road.


                                            23
¶35   Finally, even if we could agree that the depiction of the road on MS 4200

constitutes an attempted reservation of a public right-of-way across the Cobban Placer,

we would be forced to conclude that this reservation is void. In Silver Bow Mining &

Milling Co. v. Clarke, 5 Mont. 378, 5 P. 570 (1885), the Court discussed an exception

that the Land Department had inserted into the patent for the Pawnbroker Lode Claim.

This claim was located in 1875, and the patent was issued in 1880. The exception stated

as follows: “excepting and excluding from said patent all town-site property rights upon

the surface, and all houses, buildings, lots, blocks, streets, alleys, or other municipal

improvements on the surface of said Pawnbroker mining claim.” Silver Bow M. & M.

Co., 5 Mont. at 407-08, 5 P. at 571. Addressing the validity of this exception, the Court

first stated the settled principle that “[a] patent for a mining claim relates back to the

location, and is the consummation of the purchase then made.” Silver Bow M. & M. Co.,

5 Mont. at 422, 5 P. at 580. In other words, “the patentee obtains the same right under

[the patent] that he would have obtained if the patent had issued immediately after the

location and compliance with the terms of the statute,” and “[n]o unauthorized act of the

land-officer in issuing the patent can defeat this title.” Silver Bow M. & M. Co., 5 Mont.

at 422-23, 5 P. at 580.    Continuing its analysis, the Court observed that the Land

Department “must act within the scope of its authority, and as authorized by law. If it

goes beyond its jurisdiction, the patent would be so far void.” Silver Bow M. & M. Co., 5

Mont. at 424-25, 5 P. at 581-82. Accordingly, where the Land Department inserts into

the granting part of a patent an exception or reservation that the law does not authorize,

the exception or reservation is void and must be disregarded. Silver Bow M. & M. Co., 5


                                           24
Mont. at 425, 426-27, 5 P. at 582, 583; accord Talbott v. King, 6 Mont. 76, 98-99, 9 P.

434, 435-36 (1886). Applying these principles, the Court held as follows:

       There was no law authorizing the land department to except the surface
       ground from the conveyance [of the Pawnbroker mining claim], or in any
       other manner to abridge the title of the purchaser; and in so doing, it
       exceeded its authority, and its act to that extent is void and of no effect
       upon the property conveyed. An exception that is void, leaves the patent to
       stand as though it contained no such exception.

Silver Bow M. & M. Co., 5 Mont. at 426, 5 P. at 582.

¶36    In the case at hand, the reservation contained in the Cobban Placer patent of “a

right of way . . . for ditches or canals constructed by the authority of the United States”

was statutorily authorized; indeed, it was mandated. See 43 U.S.C. § 945 (“In all patents

for lands taken up after August 30, 1890, under any of the land laws of the United States

or on entries or claims validated by this Act, west of the one hundredth meridian, it shall

be expressed that there is reserved from the lands in said patent described a right of way

thereon for ditches or canals constructed by the authority of the United States.”).

However, OLR cites no law—and we have found none—authorizing the Land

Department to insert a reservation of a public road into the Cobban Placer patent.

Necessarily, then, to the extent the depiction of the road on MS 4200 and the reference in

the Cobban Placer patent to MS 4200 were intended together as a reservation of a public

road, as OLR contends, this reservation is void and must be disregarded.

¶37    The Dissent asserts that we err by not interpreting the Cobban Placer patent

pursuant to R.S. 2477. Dissent, ¶ 137. According to the Dissent, R.S. 2477 expresses an

intent on the part of the United States to reserve public highways over mining claims.



                                            25
Thus, in the Dissent’s view, although the Cobban Placer documents of conveyance do not

contain an express reservation of a public road, the federal government’s intent to reserve

one may be gleaned from R.S. 2477. Setting aside the facts that this theory was not

argued by OLR in the District Court, was not the basis of the District Court’s decision,

and is not argued by OLR on appeal, the Dissent cites no authority whatsoever for the

proposition that Congress intended R.S. 2477 to function as a reservation of public roads

in federal land patents. Moreover, the Dissent’s theory flies directly in the face of the

Supreme Court’s clear instruction not to imply rights-of-way based on an inferred intent,

i.e., an intent not set forth expressly in the land patent or an applicable statute. See Leo

Sheep, 440 U.S. at 678-82, 99 S. Ct. at 1409-11. In this regard, the Dissent’s theory

overlooks the fact that the Cobban Placer patent was issued (according to its opening

language) “[i]n pursuance of the provisions of the Revised Statutes of the United States,

Chapter Six, Title Thirty-two, and legislation supplemental thereto.” Chapter 6, Title 32

of the Revised Statutes is comprised of Sections 2318 to 2352. Section 2477, however, is

contained in Chapter 11, Title 32 of the Revised Statutes. Thus, R.S. 2477 is inapposite

for interpreting a patent which was granted in pursuance of R.S. 2318 to 2352.

¶38    But even if it could be said that R.S. 2477 somehow bears on our interpretation of

the Cobban Placer patent, this provision merely stated that “[t]he right of way for the

construction of highways over public lands, not reserved for public uses, is hereby

granted.” This language was nothing more than “an offer of the right of way for the

construction of a public highway on some particular strip of public land.” State ex rel.

Dansie v. Nolan, 58 Mont. 167, 173, 191 P. 150, 152 (1920) (emphasis added); accord


                                            26
United States v. Pruden, 172 F.2d 503, 505 (10th Cir. 1949). The offer remained in

abeyance until it was accepted by the construction of a public highway in a manner

authorized by the laws of the state in which the land was situated, and it became effective

as a right-of-way only when the road was thus finally constructed.12 See Nolan, 58 Mont.

at 173-74, 191 P. at 152; Pruden, 172 F.2d at 505; Moulton v. Irish, 67 Mont. 504, 507,

218 P. 1053, 1054 (1923). Nothing in this scheme suggests that Congress intended to

create public roads indiscriminately, unilaterally, and without regard for the wishes of the

affected local body of government. See Crawford, 441 P.2d at 590 (“[R.S. 2477] does

not of itself operate to grant right-of-ways and establish highways contrary to the local

laws.”); Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d

735, 763 n. 15 (10th Cir. 2005) (observing that each state had the authority to govern its

own acceptance of the R.S. 2477 offer). R.S. 2477 evinces an intent to offer the right-of-

way for the construction of a public highway in a manner authorized by the laws of the

state, not an intent to reserve for public use all roads depicted on mineral surveys.

¶39    Indeed, the notion of R.S. 2477 as some sort of implicit reservation was rejected

long ago in Robertson v. Smith, 1 Mont. 410 (1871):



       12
          Prior to July 1, 1895, a public highway could have been established by the act of
the proper authorities, as provided by statute; by use by the public, for the period of the
statute of limitations as to lands, of the exact route confined to the statutory width of a
highway, later claimed to be a public highway; by the opening and dedication of a road
by an individual owner of the land; or on a partition of real property. Effective July 1,
1895, no route of travel could become a public highway until declared so by the public
authorities or made so by the owner’s dedication of the land affected. See Nolan, 58
Mont. at 172, 173, 191 P. at 152; Barnard Realty Co. v. City of Butte, 48 Mont. 102, 109-
10, 136 P. 1064, 1067 (1913).

                                             27
               The defendants [the county commissioners of Meagher County]
       insist that any miner who locates a mining claim does so subject to right of
       the public under [R.S. 2477] to construct a highway over the same. There
       is no reservation of this kind in the grant to the miner. . . . The proper
       construction of the law upon these subjects is, I think, that miners have the
       right to occupy and explore unappropriated public mineral lands; that the
       public have a right to an easement for a highway over the unoccupied
       public domain, and that whichever is prior in time is prior in right. It is as
       inconsistent for the public to claim a right of way over an appropriated
       mining claim without giving the owner thereof a just compensation for his
       rights as it would be for a miner to claim the right to appropriate for mining
       purposes a portion of the public domain which had been devoted to the use
       of a public highway. The statute does not, by express terms, or by
       implication, make either of these rights superior to each other.

Robertson, 1 Mont. at 417-18; accord St. Louis & San Francisco R. Co. v. Love, 118 P.

259, 260-61 (Okla. 1911) (observing that R.S. 2477 amounted to “a standing offer,” not a

“reservation”); see also Southern Utah Wilderness Alliance, 425 F.3d at 766 n. 17 (noting

that the Land Department declined to treat R.S. 2477 as an express reservation of a right-

of-way in a patent for a land grant (citing Douglas County, Washington, 26 Pub. Lands

Dec. 446 (1898))). We therefore reject the Dissent’s expansive reading of R.S. 2477,

under which the depiction of a road on a mineral survey constitutes a reservation of a

public thoroughfare, whether or not the R.S. 2477 offer was accepted in a manner

authorized by state law.

¶40    The Supreme Court “has traditionally recognized the special need for certainty and

predictability where land titles are concerned,” and the Court is, therefore, “unwilling to

upset settled expectations to accommodate some ill-defined power to construct public

thoroughfares without compensation.” Leo Sheep, 440 U.S. at 687-88, 99 S. Ct. at 1413-

14. Given this sentiment—with which we agree—we will not divine some implicit intent



                                            28
on the part of the United States to reserve a public road across the Cobban Placer based

on nothing more than the notation of a 6-foot-wide road in MS 4200’s field notes and the

depiction of this road on MS 4200. The impact such an implication would have on those

property rights in this state which derive from federal land patents granted more than a

century ago is substantial and cannot be disregarded based on such an implausible

inference.

¶41    The reference in the Cobban Placer patent to MS 4200 did not reserve a public

road over the Cobban Placer under federal law.

III.   State Law

¶42    As noted above, in support of its express-reservation theory, OLR invoked the

state-law doctrine under which an easement may be created by reference in an instrument

of conveyance to a plat or certificate of survey which adequately describes the easement.

The District Court, accordingly, analyzed OLR’s claim pursuant to this doctrine. OLR

again relies on the doctrine on appeal, as does the Dissent.

¶43    Yet, the terms of the Cobban Placer patent are governed by the law in effect at the

time the patent was issued, Hash v. United States, 403 F.3d 1308, 1315 (Fed. Cir. 2005);

United States v. Gates of the Mountains Lakeshore Homes, Inc., 732 F.2d 1411, 1413

(9th Cir. 1984), and at no point in their respective arguments does OLR or the Dissent

produce any authority establishing that under Montana law in 1896, a public road could

be created merely by referring in a federal land patent to a mineral survey depicting a

road labeled “ROAD.” Rather, OLR and the Dissent simply assume that a public road

could be created in this manner—an assumption that the Landowners correctly dispute.


                                             29
¶44    Nevertheless, because the easement-by-reference doctrine is the sole basis of

OLR’s state-law arguments, and because the doctrine correspondingly is the sole basis of

the District Court’s decision on OLR’s express-reservation theory, we will address this

issue by assuming, arguendo, that the doctrine applies retroactively to the Cobban Placer

patent, and we will consider whether the doctrine provides for the creation of a public

road across the Cobban Placer. We begin, however, by reviewing the doctrine and its

evolution in our caselaw.

       A.     Easements Created by Reference to a Plat or Certificate of Survey

¶45    In Majers v. Shining Mountains, 219 Mont. 366, 711 P.2d 1375 (1986), Shining

Mountains acquired and subdivided a 7,000-acre ranch. In order to sell the lots, Shining

Mountains prepared and recorded subdivision plats which assigned a number to each lot

and designated common areas and roadways. The purchase and sale contracts prepared

by Shining Mountains specifically referred to the recorded plats. See Majers, 219 Mont.

at 367, 711 P.2d at 1376. On these facts, we held that the purchasers had acquired private

easements for the designated uses. See Majers, 219 Mont. at 371, 711 P.2d at 1378. In

so doing, we observed that selling lots with reference to a map or plat designating streets,

parks, or other open areas creates an implied covenant that the streets, parks, or other

open areas exist and shall be used in the manner designated. See Majers, 219 Mont. at

370-71, 711 P.2d at 1377-78. The rationale for this rule, we noted, is “ ‘the use made of

the plat in inducing the purchasers.’ ” Majers, 219 Mont. at 371, 711 P.2d at 1378

(quoting Ute Park Summer Homes Ass’n v. Maxwell Land Grant Co., 427 P.2d 249, 253

(N.M. 1967)). More specifically, as the Ute Park court explained:


                                            30
       [A] grantor, who induces purchasers, by use of a plat, to believe that streets,
       squares, courts, parks, or other open areas shown on the plat will be kept
       open for their use and benefit, and the purchasers have acted upon such
       inducement, is required by common honesty to do that which he
       represented he would do.

Ute Park, 427 P.2d at 253.

¶46    In Benson v. Pyfer, 240 Mont. 175, 783 P.2d 923 (1989), we reaffirmed that

selling lots with reference to a map or plat may create an easement benefiting the

purchasers. We observed that under § 76-3-304, MCA, when land is sold with reference

to a properly recorded plat, the plat becomes part of (i.e., is incorporated into) the

document conveying the interest in land. See Benson, 240 Mont. at 179, 783 P.2d at 925.

The effect of this statutory provision, we reasoned, is to create an easement for the

purchaser’s benefit with respect to improvements represented on the plat. See Benson,

240 Mont. at 179, 783 P.2d at 925 (citing Majers, 219 Mont. at 370, 711 P.2d at 1377).

Likewise, in Pearson v. Virginia City Ranches Ass’n, 2000 MT 12, 298 Mont. 52, 993

P.2d 688, we stated that “an easement arises when a purchaser’s deed refers to a plat

where an easement is depicted and labeled,” Pearson, ¶ 26, and we concluded, based on

this rule, that a bridle path easement had been created for the use of all lot owners in the

subdivision because the purchasers’ deeds referred to a recorded plat that clearly depicted

and labeled this easement, see Pearson, ¶¶ 1-27.

¶47    We applied these principles in favor of the sellers in Bache v. Owens, 267 Mont.

279, 883 P.2d 817 (1994). At issue in that case was a 33.64-acre tract of land owned by

the Baches. They agreed to sell 2.42 acres (Tract 2) to Owens and to retain the remaining

31.22 acres (Tract 1). The 1988 deed described the property being conveyed by metes


                                             31
and bounds and then referred to the property conveyed as “Tract 2 shown on Certificate

of Survey No. 1657.” Certificate of Survey No. 1657, in turn, provided legal descriptions

and a scaled drawing of the boundaries of Tracts 1 and 2. In addition, the certificate of

survey depicted a dotted line 30 feet east of, and parallel to, the western boundary of

Tract 2. The dotted line extended from the northern boundary of Tract 2 to the southern

boundary of Tract 2. The area between the dotted line and the western boundary of Tract

2 was labeled “P.R.E.,” which the legend identified as “private roadway easement.” See

Bache, 267 Mont. at 281-82, 291, 883 P.2d at 819, 823.

¶48    The Baches asserted that by these transaction documents, they had reserved an

easement across Tract 2 for the benefit of Tract 1. We agreed. Citing Benson, 240 Mont.

at 179, 783 P.2d at 925, and § 76-3-304, MCA, we observed that “reference in documents

of conveyance to a plat which describes an easement establishes the easement.” Bache,

267 Mont. at 283, 883 P.2d at 820; see also Bache, 267 Mont. at 285, 883 P.2d at 821

(“[A] map or plat incorporated into an instrument of conveyance can establish an

easement.” (citing Majers, 219 Mont. at 371, 711 P.2d at 1378)). We further observed

that Certificate of Survey No. 1657 “identifies the easement clearly and specifically” with

the dotted line and the label “private roadway easement,” and that it “was filed with the

county clerk and recorder, as required by law.” Bache, 267 Mont. at 286, 883 P.2d at

822. We held, therefore, that the transaction documents established an easement in favor

of Tract 1 along the western edge of Tract 2, as described in the certificate of survey.

Bache, 267 Mont. at 286, 883 P.2d at 822.




                                            32
¶49    We reached the same conclusion in Halverson v. Turner, 268 Mont. 168, 885 P.2d

1285 (1994). That case involved two adjoining tracts of land owned by the parties’

predecessor in interest, Dahlia Halverson. In 1987, Dahlia transferred the western tract to

Shirley Turner while retaining the eastern tract.      The deed referred to a recorded

certificate of survey that showed a 30-foot-wide road easement extending from the

northeast corner of Turner’s tract westerly for a distance of 188.52 feet. This easement

was to provide access from Dahlia’s retained and otherwise-landlocked tract to a street

running north from the northern boundary of Turner’s tract. See Halverson, 268 Mont. at

170-71, 885 P.2d at 1287.

¶50    In analyzing these transaction documents, we observed that a land description is a

necessary inclusion in an instrument conveying title so that the extent of the claim to the

property may be determined, and a reference to a map or plat may be included to express,

confirm, or amplify the land description. See Halverson, 268 Mont. at 172, 885 P.2d at

1288. Furthermore, reference in documents of conveyance to a plat which describes an

easement establishes the easement, but in determining the existence of an easement by

reservation in the documents of conveyance, it is necessary that the grantee of the

property being burdened by the servitude have knowledge of its use or its necessity. See

Halverson, 268 Mont. at 172, 173, 885 P.2d at 1288, 1289. Applying these principles,

we noted that although the description of the property being conveyed by the Dahlia-

Turner deed did not contain language expressly reserving an easement to Dahlia, it did

refer to the recorded certificate of survey which “clearly show[ed]” and “adequately

described” the 30-foot-wide road easement. See Halverson, 268 Mont. at 172, 173, 885


                                            33
P.2d at 1288, 1289. We held that in this manner, Dahlia had reserved an easement over

Turner’s tract for the benefit of Dahlia’s tract. See Halverson, 268 Mont. at 174, 885

P.2d at 1289.

¶51    By contrast, the 1968 plat at issue in Tungsten Holdings, Inc. v. Parker, 282 Mont.

387, 938 P.2d 641 (1997), depicted a meandering strip of land 40 feet wide and

approximately 2,700 feet long, which was identified simply as “lot 34.” This parcel

resembled a roadway, and the district court found that there was “no other conceivable

purpose a parcel of this configuration . . . could reasonably serve.” Yet, nothing in the

plat specifically identified lot 34 as such. See Tungsten Holdings, 282 Mont. at 388-89,

938 P.2d at 642.     Thus, we held that the mere fact that lot 34’s long and narrow

configuration gave it “the appearance of a roadway” or that the developers “may have

intended it as [a] roadway” was not sufficient to create a road easement. See Tungsten

Holdings, 282 Mont. at 390, 938 P.2d at 642-43. We explained that “[e]asements by

reservation must be created or reserved in writing” and “Tungsten can point to no deed or

plat which contains any language dedicating or identifying lot 34 as a roadway.”

Tungsten Holdings, 282 Mont. at 390, 938 P.2d at 643.

¶52    We discussed an important limitation on the easement-by-reference doctrine in

Ruana v. Grigonis, 275 Mont. 441, 913 P.2d 1247 (1996). The properties at issue in that

case were split from single ownership in 1977 into a northern tract and a southern tract.

Later, the successors in interest to the northern tract claimed that an easement existed for

their benefit over the southern tract. However, the language of the 1977 deed did not

create or reserve this easement, and the certificate of survey to which the 1977 deed


                                            34
referred did not depict this easement either. See Ruana, 275 Mont. at 444-45, 448-49,

913 P.2d at 1249-50, 1252-53. Although subsequent deeds subdividing the southern tract

into smaller parcels referred to certificates of survey that did clearly depict and

specifically identify the claimed easement, see Ruana, 275 Mont. at 449, 450, 913 P.2d at

1252, 1253, we noted that under Bache and Halverson, “an easement by reservation can

be established when, in conjunction with a division of land, the subject easement is

shown on the certificate of survey and the certificate of survey is referred to and

incorporated in the deed of conveyance,” Ruana, 275 Mont. at 449, 913 P.2d at 1253

(emphasis added). Thus, we held that the 1977 transaction documents which split the

northern and southern tracts from single ownership were “decisive,” Ruana, 275 Mont. at

448, 913 P.2d at 1252; and because these documents did not describe the claimed

easement, we concluded that the northern tract did not benefit from this easement over

the southern tract, see Ruana, 275 Mont. at 450-51, 913 P.2d at 1253-54.

¶53   We addressed a related restriction on the doctrine in Kelly v. Wallace, 1998 MT

307, 292 Mont. 129, 972 P.2d 1117.         The plaintiffs claimed that references to an

easement in the deeds of conveyance between the defendants’ predecessors in interest

and the defendants were effective as a matter of law to reserve an easement in favor of

the plaintiffs. See Kelly, ¶ 47. We disagreed, explaining that while “[a]n easement by

reservation may be established by reference in a document of conveyance to a recorded

COS which adequately describes the easement,” “creation of an easement by reservation

in [this] manner requires that the grantor be a party to the conveyance and that he intend

to reserve his own previously-held right to use the servient estate after he sells the


                                           35
divided parcel.” Kelly, ¶ 48. We noted that we may depart from the general rule that an

easement cannot be created in favor of a stranger to the deed in order to give effect to the

grantor’s intent to benefit a nonparty. See Kelly, ¶ 49 (citing Medhus v. Dutter, 184

Mont. 437, 444, 603 P.2d 669, 673 (1979)). However, we emphasized that such intent

must be “clearly shown,” see Kelly, ¶ 49, and we held that express depiction of an

easement on a referenced plat is not sufficient to demonstrate the grantor’s intent to

create an easement for the benefit of a nonparty, see Kelly, ¶ 51. See also Loomis v.

Luraski, 2001 MT 223, ¶¶ 27-37, 306 Mont. 478, ¶¶ 27-37, 36 P.3d 862, ¶¶ 27-37.

¶54    To summarize, our cases have recognized the creation of an easement where the

deed explicitly referred to a recorded plat or certificate of survey on which the subject

easement was adequately described. However, express depiction of an easement on a

referenced plat or certificate of survey is not sufficient, in and of itself, to create an

easement for the benefit of a stranger to the deed. In addition, an easement by reservation

may be established only when the dominant and servient estates are split from single

ownership.

¶55    An easement created in this manner—i.e., by reference in an instrument of

conveyance to a plat or certificate of survey on which the easement is adequately

described—must arise expressly, not by implication. In Albert G. Hoyem Trust v. Galt,

1998 MT 300, 292 Mont. 56, 968 P.2d 1135, we observed that “[a]n easement by

implication is created by operation of law at the time of severance, rather than by written

instrument,” and that “[t]here are only two types of implied easements: (1) an intended

easement based on a use that existed when the dominant and servient estates were


                                            36
severed, and (2) an easement by necessity.” Hoyem Trust, ¶ 17. By contrast, we stated in

Halverson that “[a]n easement by reservation must arise from the written documents of

conveyance.” Halverson, 268 Mont. at 172, 885 P.2d at 1288; accord Ruana, 275 Mont.

at 447, 913 P.2d at 1251; Tungsten Holdings, 282 Mont. at 390, 938 P.2d at 642;

Pearson, ¶¶ 18, 20. When the deed itself contains no language reserving (or granting) an

easement, our easement-by-reference doctrine contemplates that an adequately described

easement depicted on a referenced plat or certificate of survey is sufficient to establish

the easement.

¶56   In Bache, for instance, the certificate of survey depicted Tracts 1 and 2 and a 30-

foot-wide strip of land along the western boundary of Tract 2. The strip of land extended

from Tract 1 to a state route on the other side of Tract 2, and it was “clearly and

specifically” identified with the label “P.R.E.,” which the legend identified as “private

roadway easement.” We held that in this manner, the Baches had reserved an easement

over Tract 2 in favor of Tract 1. See Bache, 267 Mont. at 282, 286, 291, 883 P.2d at 819,

822, 823. In Halverson, the certificate of survey “clearly show[ed]” and “adequately

described” a 30-foot-wide road easement extending from the northeast corner of Turner’s

tract westerly for a distance of 188.52 feet to provide access from Dahlia’s adjoining

retained tract to a street running north from the northern boundary of Turner’s tract. We

held that in this manner, Dahlia had reserved an easement over Turner’s tract for the

benefit of Dahlia’s tract. See Halverson, 268 Mont. at 170-71, 172, 173, 885 P.2d at

1287, 1288, 1289. In Pearson, the plat “clearly depict[ed] and label[ed]” a bridle path

easement crossing the subdivision for the use of all lot owners. See Pearson, ¶¶ 1, 10,


                                           37
17. In each of these cases, express language was used (1) to refer in the instrument of

conveyance to the plat or certificate of survey and (2) to identify and describe the

intended easement. By contrast, in Tungsten Holdings, the mere fact that lot 34’s “long

and narrow configuration” gave it “the appearance of a roadway” or that “the developers

may have intended it as roadway” was insufficient. Tungsten Holdings, 282 Mont. at

390, 938 P.2d at 643.

¶57    In sum, an easement created by reference in an instrument of conveyance to a plat

or certificate of survey adequately describing the easement is an express easement. The

term “express” is defined as “[c]learly and unmistakably communicated; directly stated.”

Black’s Law Dictionary 620 (Bryan A. Garner ed., 8th ed., West 2004); cf. § 28-2-103,

MCA (defining an “express” contract as “one the terms of which are stated in words”).

The term “expressed” is defined as “[d]eclared in direct terms; stated in words; not left to

inference or implication.”     Black’s Law Dictionary 620.          Consistent with these

definitions, the intent to create an easement must be clearly and unmistakably

communicated on the referenced plat or certificate of survey using labeling or other

express language.    This is the minimal requirement to establish the easement.         An

easement may not be inferred or implied from an unlabeled or inadequately described

swath of land or other such depiction appearing on a plat or certificate of survey.

       B.     Application of the Doctrine to the Cobban Placer Patent

¶58    Relying on Majers, Bache, Halverson, Tungsten Holdings, Ruana, and Pearson,

OLR maintains that the United States expressly reserved a public road across the Cobban

Placer, for purposes of ingress to and egress from the Plymouth Rock Placer and the


                                             38
Plymouth Rock Extension Placer, when it issued the Cobban Placer patent. OLR asserts

that all three of these parcels were “in common ownership” when the patent was issued in

1896; that MS 4200 and the corresponding field notes were incorporated into the patent;

that a road traversing the Cobban Placer is “clearly depicted” on MS 4200; and that this

road is “public” because it “continued to and from public property on the east and the

west of the Cobban Placer.”

¶59    The Landowners respond that the 1896 grant of the Cobban Placer does not come

within our easement-by-reference doctrine for a variety of reasons. First, the Landowners

point out that the Cobban Placer, the Plymouth Rock Placer, and the Plymouth Rock

Extension Placer were each segregated from the public domain and became the property

of the respective claimholders when the mining claims were located in 1892, 1889, and

1890, respectively. Therefore, the Landowners argue, when the Cobban Placer patent

was issued in 1896, the three parcels were not “in common ownership.” Second, the

Landowners assert that a mere reference in a federal land patent to a mineral survey that

depicts a road is not evidence of an intent to reserve a public easement and that the

designation “Road” on a mineral survey is, in and of itself, no more significant than the

designations “Fence,” “Cabin,” “Creek,” “Mineshaft,” “Dam,” etc.               Third, the

Landowners contend that our easement-by-reference doctrine serves to create private, not

public, easements. Lastly, the Landowners argue that our easement-by-reference doctrine

only applies to plats and certificates of survey that have been filed and recorded with the

county clerk and recorder. They contend that the safe and orderly transfer of land titles

depends on the ability of purchasers and title examiners to find all documents pertaining


                                            39
to the title of the subject property at a central repository within each county and that the

District Court’s approach in the case at hand undermines this established system.

¶60    We agree with the Landowners that the Cobban Placer documents of conveyance

do not meet the requisites of our easement-by-reference doctrine; however, we need not

address all of the points raised by the Landowners because the following two

considerations are sufficient to resolve this issue.

¶61    First, we have only recognized the creation of privately-held easements under our

easement-by-reference cases. We have never applied the doctrine to create a public road,

and we decline to do so under the circumstances presented here. As the Landowners

point out, the creation of public roads in 1896 was governed by specific provisions of law

which generally required an official action on the part of the public authority. See

Barnard Realty Co. v. City of Butte, 48 Mont. 102, 109-10, 136 P. 1064, 1067 (1913);

State ex rel. Dansie v. Nolan, 58 Mont. 167, 172-73, 191 P. 150, 152 (1920). OLR and

the Dissent would have this Court hold that a public road could be established by a

method not contemplated by any provision of law in 1896—namely, by referring in a

federal land patent to a mineral survey which depicts a road labeled “ROAD.” However,

it would be inappropriate for this Court, by judicial fiat 112 years after the fact, to adopt

this as a method of creating public roads in 1896—particularly since such a “public-road-

by-reference” doctrine would enable a grantor to circumvent the procedures and

formalities that existed in 1896 and unilaterally create a public road, thereby saddling the

public authority with responsibility for the new public road without any acceptance

whatsoever by the public authority.


                                              40
¶62    Second, as explained above, the intent to create the subject easement must be

clearly and unmistakably communicated on the referenced plat or certificate of survey

using express language. Here, however, there is no label or other express language on

MS 4200 communicating an intent to reserve the depicted road as a “public” road. Nor is

there any evidence in the field notes or in the Cobban Placer patent itself of an intent on

the part of the federal government to reserve a public road across the Cobban Placer. The

label “ROAD” on MS 4200 is not sufficient under any of our cases to create an easement

in favor of the public. Moreover, the evidence in the record before us reflects that

creating a public road was not the federal government’s intent. The Cobban Placer, the

Plymouth Rock Placer, and the Plymouth Rock Extension Placer were segregated from

the public domain in 1892, 1889, and 1890, respectively. At that point, each mining

claimholder had the exclusive right to possession and enjoyment of all the surface

included within the lines of his respective parcel. See ¶ 3, supra. It is highly improbable

that the United States, when it issued the Cobban Placer patent in 1896, would reserve a

public road across the Cobban Placer to access two parcels which had left the public

domain six years (the Plymouth Rock Extension Placer) and seven years (the Plymouth

Rock Placer) earlier and which were, in 1896, in the exclusive possession of the

claimholder (John T. Reese). Indeed, OLR’s expert opined that the label “road” on a plat

or survey is not indicative of a public road unless the road is providing access to and from

public lands on both sides of the property at issue. See ¶ 34, supra. We therefore do not

agree with OLR’s contention that the mere depiction of a road labeled “ROAD” on

MS 4200 clearly and unmistakably communicates an intent to reserve a “public” road.


                                            41
¶63       The Dissent argues that the federal government’s intent to reserve a public road

across the Cobban Placer is clear in light of R.S. 2477. Dissent, ¶ 137. However, the fact

that the Dissent is resorting to R.S. 2477 in order to ascertain the meaning of the label

“ROAD” on MS 4200 only confirms that the federal government’s supposed intent to

reserve a public road is not clearly and unmistakably communicated on MS 4200 using

appropriate labeling or other express language.

¶64       For the foregoing reasons, we hold that the reference in the Cobban Placer patent

to MS 4200 did not reserve a public road across the Cobban Placer under our easement-

by-reference doctrine.

¶65       Before concluding, it is necessary to address the Dissent’s assertion that this

Opinion somehow “reaches a result at odds with the practical realities of the history of

property ownership in Montana, particularly with respect to the location and patenting of

mining claims in and around Butte.” Dissent, ¶ 101. This diaphanous remark is based

entirely on the Dissent’s own theory of this case—not on the theory actually argued by

the parties—and on factual assumptions that are not supported by the record before us.

Moreover, the Dissent’s assertion is disconnected from any property law applicable to the

Cobban Placer patent.       The Dissent fails to cite a single statute in effect in 1896

supporting a result contrary to the holdings reached herein. The Dissent likewise fails to

cite any caselaw in effect in 1896 supporting a result contrary to the holdings reached

herein.

¶66       It appears that the Dissent would graft R.S. 2477 onto this Court’s easement-by-

reference doctrine and then apply this new public-road doctrine retroactively, and


                                              42
indiscriminately, to countless land transfers across the span of more than 100 years,

resulting in the creation of untold numbers of unforeseen—and unintended—public

servitudes across countless parcels of land in this state. The Dissent would do so without

regard for “the special need for certainty and predictability where land titles are

concerned,” Leo Sheep, 440 U.S. at 687, 99 S. Ct. at 1413, and without regard for “the

substantial impact” that implying rights-of-way would have on property rights granted

over 100 years ago, Leo Sheep, 440 U.S. at 682, 99 S. Ct. at 1411.

¶67    As a matter of construing the federal government’s intent in issuing the Cobban

Placer patent, we may not upset long-settled expectations to accommodate a vague and

unsubstantiated right to construct a 60-foot-wide public highway without compensation

to the servient Landowners. Leo Sheep, 440 U.S. at 681-82, 687-88, 99 S. Ct. at 1410-11,

1413-14.    Quite to the contrary, past, present, and future generations of Montana

landowners have the right to be secure in the knowledge that they will not wake up one

morning to find that a community or organization has decided to build a 60-foot-wide

public highway through their back yards based on nothing more than a surveyor’s

notation of a 6-foot-wide dirt road on a 115-year-old mineral survey and a healthy dose

of sophistical prestidigitation.

                                    CONCLUSION

¶68    The federal government did not reserve a public road across the Cobban Placer by

virtue of the reference in the Cobban Placer patent to MS 4200. Accordingly, we hold

that the District Court erred in its determination that the road traversing the Cobban




                                           43
Placer is a public road pursuant to an express easement by reservation created in

MS 4200 and referred to in the conveying documents of the Cobban Placer.

¶69    Reversed.


                                                         /S/ JAMES C. NELSON


We concur:


/S/ BLAIR JONES
District Court Judge Blair Jones
sitting for Chief Justice Karla M. Gray

/S/ PATRICIA COTTER

/S/ JIM RICE




Justice James C. Nelson, specially concurring.

¶70    The specific issue presented on this appeal is whether the District Court erred in its

determination that, as a matter of law, the federal government created a public road by

express reservation in the Cobban Placer documents of conveyance. I believe the Court’s

Opinion correctly and fully resolves this issue.

¶71    As for OLR’s R.S. 2477 theory, the District Court considered this theory and

determined that “questions of material fact exist and the issue cannot be resolved by

summary judgment.” The Dissent states that the District Court erred in this respect.



                                             44
Dissent, ¶ 107. This remark, however, is gratuitous at best, given that neither party has

appealed from the court’s ruling. Indeed, neither party raises OLR’s R.S. 2477 theory on

appeal. The Dissent acknowledges this point. Dissent, ¶ 107. Nevertheless, the Dissent

offers a lengthy argument that a public road across the Cobban Placer was created under

R.S. 2477 as a matter of law. Dissent, ¶¶ 102-130. A review of the record reveals that

the Dissent’s argument builds on and further develops the arguments articulated by OLR

in its Response in Opposition to Defendants’ Motion for Summary Judgment.

¶72    In addition, the Dissent addresses the matter of termination. Dissent, ¶¶ 131-132.

The Landowners argued this issue in their motion for summary judgment, claiming that

any public road that may have existed across the Cobban Placer was extinguished by

reverse prescription. The District Court ruled that the parties had “presented conflicting

evidence to this Court regarding these questions of material fact [related to prescriptive

use]” and, accordingly, denied summary judgment on this issue. The Landowners have

not appealed from this ruling.

¶73    The propriety of the Dissent’s approach in light of the procedural posture of this

case is self-evident and requires no further comment.       That said, to the extent the

Dissent’s various articulations of the law related to R.S. 2477 could be viewed as a

guidebook for subsequent proceedings in the District Court on remand, I believe it is

necessary and appropriate to explain why the Dissent’s R.S. 2477 analysis founders in

several respects.

¶74    The Dissent stresses the principle that a mining claimant took title to his claim

subject to any valid easements against the United States existing at the time the claim was


                                            45
located. Dissent, ¶¶ 105, 119, 122, 124. No one disputes this point. Indeed, “a grant by

the United States conveys all the interest that the United States has at the time of the

grant, and no greater interest. . . . [T]he United States cannot, by patent, convey to any

grantee a greater right than it has at the time of such grant.” Murray v. City of Butte, 7

Mont. 61, 68, 14 P. 656, 657 (1887) (citing Butte City Smoke-House Lode Cases, 6 Mont.

397, 12 P. 858 (1887), and Deffeback v. Hawke, 115 U.S. 392, 6 S. Ct. 95 (1885)). Thus,

a valid acceptance of the R.S. 2477 offer prior to the date of the location upon which a

patent was based was “valid against the government, and therefore valid against the

subsequent grantees of the government, who must take the land in question, subject to

any easement which was valid against the government at the time of the location.”

Murray, 7 Mont. at 68-69, 14 P. at 657; accord City of Butte v. Mikosowitz, 39 Mont.

350, 355, 102 P. 593, 595 (1909). Conversely, “where one acquires from the United

States legal or equitable title prior to an effective acceptance of the [R.S. 2477] grant or

dedication, he and his successors in interest do not hold subject to an easement for the

subsequent establishment of a highway.” United States v. Pruden, 172 F.2d 503, 505

(10th Cir. 1949) (emphasis added).

¶75    Of course, these relatively unremarkable propositions assume the very matter to be

decided under OLR’s R.S. 2477 theory—namely, whether there was a valid acceptance

of the R.S. 2477 offer prior to February 20, 1892, when the Cobban Placer was located.

The Dissent asserts that John T. Reese accepted the offer. Dissent, ¶¶ 119, 139. Yet, the

Dissent offers no basis whatsoever for this assertion other than the fact that Reese located

the Plymouth Rock Placer in 1889 and the Plymouth Rock Extension Placer in 1890. The


                                            46
legal question of whether the R.S. 2477 offer was validly accepted cannot be answered

based on nothing more than a document stating that someone located a mining claim at a

particular place and time. Rather, the answer to this question depends on the legal rules

governing the creation of public highways and on actual evidence—not mere

conjecture—that these rules were satisfied. Standage Ventures, Inc. v. Arizona, 499 F.2d

248, 250 (9th Cir. 1974).

¶76    R.S. 2477 states, in its entirety, as follows: “The right of way for the construction

of highways over public lands, not reserved for public uses, is hereby granted.” It is

well-settled that R.S. 2477 is “an offer of the right of way for the construction of a public

highway on some particular strip of public land.” State ex rel. Dansie v. Nolan, 58 Mont.

167, 173, 191 P. 150, 152 (1920). It is also well-settled that this offer can only be

accepted by the “construction” of a public highway in a manner authorized by the laws of

the state in which the land is situated. Nolan, 58 Mont. at 173, 191 P. at 152. The cases

standing for these points are legion. See Pruden, 172 F.2d at 505 (citing cases); Moulton

v. Irish, 67 Mont. 504, 507, 218 P. 1053, 1054 (1923) (and cases cited therein); but see

Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735, 768

(10th Cir. 2005) (concluding “that federal law governs the interpretation of R.S. 2477,

but that in determining what is required for acceptance of a right of way under the statute,

federal law ‘borrows’ from long-established principles of state law, to the extent that state

law provides convenient and appropriate principles for effectuating congressional

intent”).




                                             47
¶77    Here, the Cobban Placer left the public domain on February 20, 1892, when

William F. Cobban and William H. Lewis located this mining claim. See Opinion, ¶¶ 3,

5. Therefore, in order to determine whether there was a valid acceptance of the R.S. 2477

offer as applied to the Cobban Placer, it is necessary first to identify the methods for

establishing a public highway under Montana law in the years prior to 1892. See Richter

v. Rose, 1998 MT 165, ¶ 27, 289 Mont. 379, ¶ 27, 962 P.2d 583, ¶ 27; Southern Utah

Wilderness Alliance, 425 F.3d at 771. We identified those methods in Nolan:

              Prior to July 1, 1895, a public highway could have been established
       either by the act of the proper authorities, as provided by the statute, or by
       use by the public, for the period of the statute of limitations as to lands, of
       the exact route confined to the statutory width of a highway, later claimed
       to be a public highway, or by the opening and dedication of a road by an
       individual owner of the land, or on a partition of real property.

Nolan, 58 Mont. at 173, 191 P. at 152; accord Richter, ¶ 28.

¶78    It has not been argued in this case that a public road was established across the

Cobban Placer prior to 1892 “by the act of the proper authorities” or “on a partition of

real property.” Indeed, the District Court observed that OLR had not raised either of

these two theories. As for “opening and dedication” by an individual landowner, this

Court has previously held that R.S. 2477 does not come within the meaning of

“dedication by the owner of the land” as contemplated by Montana highway laws. See

Nolan, 58 Mont. at 172-73, 191 P. at 152. That leaves only “use by the public, for the

period of the statute of limitations as to lands, of the exact route confined to the statutory

width of a highway, later claimed to be a public highway.” Prior to July 1, 1895, that




                                             48
period was five years.1 See Nolan, 58 Mont. at 175, 191 P. at 153; Montana Ore-

Purchasing Co. v. Butte & Boston Consol. Min. Co., 25 Mont. 427, 430, 65 P. 420, 421

(1901).    Accordingly, OLR was required to demonstrate, by clear and convincing

evidence (see Watson v. Dundas, 2006 MT 104, ¶ 41, 332 Mont. 164, ¶ 41, 136 P.3d 973,

¶ 41), that the alleged public road across the Cobban Placer existed since at least

February 20, 1887, and that the public used this road in the requisite manner for a five-

year period. See Nolan, 58 Mont. at 174, 191 P. at 152-53 (“If, therefore, the offer is

accepted by user under the laws of this state, that user must be shown to have continued

over the exact route claimed, for the statutory period prior to July 1, 1895.”); see also

City of Butte v. Mikosowitz, 39 Mont. 350, 355, 102 P. 593, 595 (1909) (concluding that

use by the public generally as a roadway for five years or more prior to July 1, 1895, was

sufficient to accept the R.S. 2477 offer).

¶79    With respect to the character and extent of the use, it must be shown that the road

was “known and used as a highway common to all the people.” State v. Auchard, 22

Mont. 14, 16, 55 P. 361, 362 (1898) (per curiam) (citation and internal quotation marks

omitted). Furthermore, OLR’s evidence must be “ ‘convincing’ ” that the public pursued

“ ‘a definite, fixed course, continuously and uninterruptedly,’ ” for the statutory period of

five years. Moulton, 67 Mont. at 508, 218 P. at 1055 (quoting Violet v. Martin, 62 Mont.


       1
         In its discussion of OLR’s R.S. 2477 theory, the District Court stated that “there
has been no argument the Road was obtained by action of authorities, prescription, or
partition of real property.” However, in its response in opposition to the Landowners’
motion for summary judgment, OLR did assert that “the grant of the [road across the
Cobban Placer] by the federal government was accepted by public use of the road for at
least five years before July 1, 1895.”

                                             49
335, 342, 205 P. 221, 223 (1922)). A “definite, fixed course” is “a course with clear and

precise limits and of a permanent character.” Violet, 62 Mont. at 342, 205 P. at 223.

“[T]he mere casual journeying over what might thereafter become the right of way for a

public road could not constitute the trail, thereby made, a public highway.” Nolan, 58

Mont. at 173, 191 P. at 152; see also Montana Ore-Purchasing, 25 Mont. at 431, 65 P. at

421 (“[W]here the claim is founded upon use only, without color of title, it must appear

that the use has been confined to the particular way for the full time of the prescribed

limitation. Travel by the public generally over uninclosed land, but not confined to any

particular way, will not inaugurate such an adverse claim as will presently ripen into a

right which may be asserted against the owner.” (citation omitted)). As we stated in

Nolan, “[i]t is inconceivable that it was the intention of Congress and of the Legislature

to say that two or more persons crossing at random on each of a dozen trails across an

open quarter section of land could constitute an acceptance of the government grant as to

each of such trails, and the entire quarter section thus become but a series of irregular and

divergent rights of way.” Nolan, 58 Mont. at 173, 191 P. at 152.

¶80    The Wisconsin Supreme Court reached a similar conclusion with respect to

acceptance of the R.S. 2477 offer:

       As said in [Streeter v. Stallnaker, 85 N.W. 47, 48 (Neb. 1901)]: “The
       statute was a standing offer of a free right of way over the public domain,
       and, as soon as it was accepted in an appropriate manner by the agents of
       the public or the public itself, a highway was established.” This seems to
       us a very fair and reasonable construction of the law. Mere fugitive
       trespasses by private persons over public lands, even though continued for a
       considerable time, do not meet the requirement. It has been held that it may
       be accepted by the state by passage of a general law [Wells v. Pennington
       County, 48 N.W. 305 (S.D. 1891)]; also by county authorities by surveying,


                                             50
         platting, and marking out a road, though such acts were insufficient to
         constitute a laying out of a road under the general road law [Streeter,
         supra]; also by more than 20 years’ adverse use by the public generally
         [McRose v. Bottyer, 22 P. 393 (Cal. 1889)]. It has never been held,
         however, that a few months’ desultory use by a few persons of a logging
         road or trail through the woods, with no acts by the public authorities of
         any kind, would constitute an acceptance of the offer made by the
         government.

Town of Rolling v. Emrich, 99 N.W. 464, 465 (Wis. 1904).

¶81      In the case at hand, it goes without saying that, thus far, there has been no

evidence presented to establish by clear and convincing proof—or any other standard, for

that matter (see Dissent, ¶ 130)—that the public pursued a definite and fixed course of a

permanent character over the Cobban Placer, continuously and uninterruptedly, for five

years prior to February 20, 1892, and that the road was known and used as a highway

common to all the people. Not even the Dissent argues that such evidence exists in the

record before us. For this reason, and notwithstanding the Dissent’s contrary assertion in

¶ 107, the District Court did not err in denying summary judgment on OLR’s R.S. 2477

claim.

¶82      The Dissent, however, attempts to circumvent this conclusion by offering a fifth

method, not identified in Nolan or any other precedent, for establishing a public highway

under Montana law prior to 1892—namely, use of public land by an individual for no

particular amount of time. This novel theory, entirely of the Dissent’s own making, is not

supported by any legal authority whatsoever. Nor is it established factually in the record

now before us.




                                            51
¶83   The Dissent’s theory proceeds as follows. The R.S. 2477 offer was open-ended

and self-executing. Dissent, ¶¶ 104, 105, 115, 121. Reese accepted the offer when he

located the Plymouth Rock Placer in 1889 and the Plymouth Rock Extension Placer in

1890. Dissent, ¶¶ 119, 135, 139. (The Dissent does not actually state that locating the

Plymouth Rock Placer and the Plymouth Rock Extension Placer required the construction

of a public highway across the Cobban Placer, but this appears to be the Dissent’s

premise.) Reese used the road that is at issue in this case. Dissent, ¶¶ 110, 135. It was

not necessary for Reese to use the road for any particular amount of time in order to

accept the R.S. 2477 offer, since acceptance does not require any particular duration of

use. Dissent, ¶¶ 115-124. It also was not necessary for anyone but Reese to use the road,

since acceptance does not require use by more than one individual. Dissent, ¶¶ 119, 129,

139. Therefore, a public highway across the Cobban Placer arose by operation of law

and existed by 1892 when Cobban and Lewis located the Cobban Placer. Dissent,

¶¶ 106, 122, 135. Cobban and Lewis took title subject to this public highway. Dissent,

¶¶ 119, 122, 124, 131.

¶84   The most obvious flaw in the Dissent’s approach is its implausibility. If the

R.S. 2477 offer could be accepted merely by an individual’s journeying across

unenclosed public lands, then the entire countryside would consist of public highways.

As noted above, this notion was rejected long ago, Nolan, 58 Mont. at 173, 191 P. at 152;

Town of Rolling, 99 N.W. at 465, and the Dissent’s attempt to resurrect it is entirely

unpersuasive.




                                           52
¶85    That aside, the Dissent’s syllogism is legally unsustainable. It is certainly true that

Congress did not specify a particular method or procedure for accepting the R.S. 2477

offer. Nor did Congress require that the offer be accepted by application to, or approval

by, the federal government. See San Juan County, Utah v. United States, 503 F.3d 1163,

1168 (10th Cir. 2007); Sierra Club v. Hodel, 848 F.2d 1068, 1084 (10th Cir. 1988),

overruled in part on other grounds, Village of Los Ranchos de Albuquerque v. Marsh,

956 F.2d 970, 973 (10th Cir. 1992) (en banc). Indeed, “the establishment of R.S. 2477

rights of way required no administrative formalities: no entry, no application, no license,

no patent, and no deed on the federal side; no formal act of public acceptance on the part

of the states or localities in whom the right was vested.” Southern Utah Wilderness

Alliance v. Bureau of Land Management, 425 F.3d 735, 741 (10th Cir. 2005). However,

these facts do not support the Dissent’s thesis that an individual could unilaterally

establish a public highway without regard for the laws of the particular state in which the

land was situated.     To the contrary, courts uniformly held that acceptance of the

R.S. 2477 offer required implementation of an authorized method for establishing a

public highway under the laws of the state. See United States v. Pruden, 172 F.2d 503,

505 (10th Cir. 1949); Moulton v. Irish, 67 Mont. 504, 507, 218 P. 1053, 1054 (1923). In

other words, “the grant referred to in R.S. 2477 became effective upon the construction or

establishing of highways, in accordance with the state laws.” San Juan County, 503 F.3d

at 1168 (emphasis added). The Dissent may choose to manufacture additional methods

of creating public highways under Montana law in 1892 to suit its R.S. 2477 theory, but




                                             53
this approach cannot be sustained on the ground that the R.S. 2477 offer was “open-

ended and self-executing” (see Dissent, ¶ 104).

¶86    The same applies to the Dissent’s attempt to omit any requirement of public use

for the statutorily-specified period of time. Dissent, ¶¶ 115-124. The Dissent cites

numerous cases from other jurisdictions for the proposition that there is no specific

period of use applicable to R.S. 2477. Dissent, ¶ 118.2 Of course, the question of

whether the R.S. 2477 offer was accepted depends on the laws of Montana governing the

creation of public highways prior to 1892. Consequently, cases which articulate the

highway laws of Kansas, Colorado, Nebraska, California, South Dakota, Oregon, New

Mexico, and Washington, are not on point for purposes of determining whether the offer

was accepted in relation to the Cobban Placer. The Dissent also relies on our statement

in Moulton, 67 Mont. at 510, 218 P. at 1055, that “[w]e do not wish to be understood as

holding that the continuous use of a road by the public for five years prior to July 1, 1895,

was necessary to establish a public highway over unappropriated public lands in order to

meet the requirements of the statute.” See Dissent, ¶ 117. This statement, however, must

be understood in context.      The proponents of the public highway in Moulton had

“conceded . . . that, if the road in question ever became a public highway, it was created


       2
         In particular, the Dissent cites Hughes v. Veal, 114 P. 1081 (Kan. 1911), Leach v.
Manhart, 77 P.2d 652 (Colo. 1938), Nicolas v. Grassle, 267 P. 196 (Colo. 1928), Streeter
v. Stalnaker, 85 N.W. 47 (Neb. 1901), McRose v. Bottyer, 22 P. 393 (Cal. 1889), Wells v.
Pennington County, 48 N.W. 305 (S.D. 1891), Wallowa County v. Wade, 72 P. 793 (Or.
1903), Lovelace v. Hightower, 168 P.2d 864 (N.M. 1946), and Smith v. Mitchell, 58 P.
667 (Wash. 1899). These cases contrast with the approach in Arizona, which did not
recognize acceptance by mere public use. See Tucson Consol. Copper Co. v. Reese, 100
P. 777 (Ariz. 1909).

                                             54
by use or prescription only.” Moulton, 67 Mont. at 507, 218 P. at 1054. Prior to July 1,

1895, the period for acquiring title by prescription was five years; thus, the case was tried

on the theory that the use of the road at issue had to date back to July 1, 1890. Moulton,

67 Mont. at 508, 218 P. at 1054. Our statement, therefore, appears simply to be an

acknowledgement that there were other methods of establishing public highways in

Montana prior to 1895. See Nolan, 58 Mont. at 173, 191 P. at 152. The dictum does not

stand for the proposition that public highways could be created by individual use for any

random period of time.

¶87    I do agree with the Dissent’s suggestion that “prescription” is an inapt term for

referring to the second method identified in Nolan of establishing a public highway—

namely, “use by the public, for the period of the statute of limitations as to lands, of the

exact route confined to the statutory width of a highway, later claimed to be a public

highway,” Nolan, 58 Mont. at 173, 191 P. at 152. In Richter v. Rose, 1998 MT 165, 289

Mont. 379, 962 P.2d 583, we restated this quoted language from Nolan as “prescriptive

use for the period of time required by statute,” Richter, ¶ 28, and we have repeated this

terminology in a number of subsequent cases, see McCauley v. Thompson-Nistler, 2000

MT 215, ¶ 21, 301 Mont. 81, ¶ 21, 10 P.3d 794, ¶ 21; Powell County v. 5 Rockin’ MS

Angus Ranch, 2004 MT 337, ¶ 17, 324 Mont. 204, ¶ 17, 102 P.3d 1210, ¶ 17. Yet, while

I conclude that “prescriptive” use is inapplicable to R.S. 2477, I do not agree with the

Dissent that requiring public use for the statutory time period is “counter-intuitive” as

applied to R.S. 2477.




                                             55
¶88    Prior to July 1, 1895, a highway could be established by prescription. State v.

Auchard, 22 Mont. 14, 15-16, 55 P. 361, 362 (1898) (per curiam). The proponent had to

present convincing evidence that the public pursued a definite and fixed course (i.e., a

course with clear and precise limits and of a permanent character) over the way claimed,

continuously for the time period set by law (five years). Auchard, 22 Mont. at 16, 55 P.

at 362; Violet v. Martin, 62 Mont. 335, 342, 205 P. 221, 223 (1922). Moreover, the

proponent had to demonstrate that the public use was with an assumption of control and

right of use adverse to the landowner (i.e., without the owner’s permission). Violet, 62

Mont. at 342, 205 P. at 223.          As the Dissent points out, public acceptance of the

R.S. 2477 offer cannot be “adverse” to the United States. Dissent, ¶ 119. After all,

R.S. 2477 was an offer; and use under R.S. 2477, therefore, was with the federal

government’s permission. Thus, it is incorrect to suggest that acceptance of the offer by

public use is a “prescriptive” use.

¶89    That said, the Dissent reasons that because the use is not adverse, it would be

“counter-intuitive” to require the use to occur for any particular amount of time. Dissent,

¶ 119. On this point, I could not disagree more with the Dissent. For one thing, the

Dissent offers no alternative objective basis for determining whether the character and

extent of public use were sufficient to constitute an acceptance of the R.S. 2477 offer.

The Dissent simply asserts that the location of a mining claim constitutes an acceptance

of a right-of-way over adjoining public land. Notably, the Dissent provides no guidance

or insight as to what specific aspects of locating a mining claim—here, the Plymouth




                                              56
Rock Placer and the Plymouth Rock Extension Placer—involve use by the public,

sufficient in character and extent, to constitute an acceptance of the R.S. 2477 offer.

¶90    More importantly, the Dissent’s proposed new theory of acceptance flies in the

face of 137 years of Montana precedent, without any rationale for changing course at this

late date. Five years after R.S. 2477 was enacted, the Court in Robertson v. Smith, 1

Mont. 410 (1871), interpreted the provision as follows:

       [R.S. 2477] does not devote any particular portion of the public domain to a
       highway. It gives a general right to the public of a right of way for that
       purpose over public lands, and should be construed only to offer to devote
       to that use any lands belonging to the general government, not reserved for
       public uses, that the public might, through its proper officers, select. Until
       the public then accepts the offer made, and seeks to devote some particular
       portion of the public domain for a highway, no rights accrue to the public
       over such lands. See The City and County of San Francisco v. David
       Calderwood et al., 31 Cal. 585 [1867]. No rights could have accrued to the
       public in the land, upon any portion of Cement gulch, until either the
       legislature declared the tollroad up the same a highway, or until the said
       county commissioners sought to locate one there.

Robertson, 1 Mont. at 417 (emphases added). Thus, as interpreted by the Court in 1871,

acceptance in Montana of the R.S. 2477 offer required action by the proper authorities.

¶91    Sixteen years later, the Court in Murray v. City of Butte, 7 Mont. 61, 14 P. 656

(1887), suggested that proof of “actual user and occupation” by the public could be

sufficient to prove acceptance of the R.S. 2477 offer. See Murray, 7 Mont. at 67, 14 P. at

657. In so doing, the Court borrowed from the doctrine of dedication of land for public

use, observing as follows: “ ‘There is no particular form or ceremony necessary in the

dedication of land to public use. All that is required is the assent of the owner of the

land, and the fact of its being used for the public purposes intended by the



                                             57
appropriation.’ ” Murray, 7 Mont. at 67, 14 P. at 656-57 (emphasis in Murray) (quoting

City of Cincinnati v. White’s Lessee, 31 U.S. 431, 6 Pet. 431 (1832)). The Court did not

indicate what character and extent of public use was required; however, that question was

arguably immaterial given that the particular proof offered by the City (and refused by

the trial court) was testimony by one of the original locators of the mining claim to the

effect that when he located the claim, there were “public” streets and highways (the ones

at issue) already in existence. See Murray, 7 Mont. at 66, 14 P. at 656.

¶92    Next, in City of Butte v. Mikosowitz, 39 Mont. 350, 102 P. 593 (1909), we clarified

the means of accepting the R.S. 2477 offer as follows:

       The purpose of the congressional grant or dedication is to enable the public
       to acquire a roadway over public lands. The method by which the roadway
       is to be established is not specified; and it must be held, therefore, that the
       Congress intended that any acts by which the public might acquire a public
       roadway over private property, other than by purchase, would be sufficient
       to constitute an acceptance of this grant or dedication.

Mikosowitz, 39 Mont. at 355, 102 P. at 595. With respect to the strip of land at issue, we

concluded that the City’s evidence—which touched the character and extent of the use

made of the disputed ground—supported the jury’s finding “that the strip had been used

by the public generally as a roadway for five years or more, prior to July 1, 1895”; the

evidence, thus, “was sufficient to establish a road by prescription, if the land over which

it passed had been the subject of private ownership.” Mikosowitz, 39 Mont. at 354-55,

102 P. at 595. Hence, we effectively tethered acceptance of the R.S. 2477 offer to the

methods of acquiring a public roadway over private property; and with respect to the

particular factual circumstances of the case, we concluded that use of the disputed ground



                                             58
in the manner and to the extent necessary to establish a public road over private property

by prescription was sufficient to accept the R.S. 2477 offer over public land.

¶93     The rule that acceptance of the R.S. 2477 offer by mere public use requires use for

the statutorily-prescribed period has been repeated in numerous cases since Mikosowitz.

See Nolan, 58 Mont. at 173-74, 191 P. at 152-53; Moulton, 67 Mont. at 507-08, 218 P. at

1054, 1055; Parker v. Elder, 233 Mont. 75, 77-78, 758 P.2d 292, 293 (1988); Richter v.

Rose, 1998 MT 165, ¶ 28, 289 Mont. 379, ¶ 28, 962 P.2d 583, ¶ 28. In Nolan, we quoted

approvingly the following language from Vogler v. Anderson, 89 P. 551 (Wash. 1907):

                “The trial court based its judgment on the theory that the act of
        Congress granting a right of way for the construction of public highways
        over public lands not reserved for public use was a grant in praesenti, and
        became effective the moment the public began using the way as a public
        highway, and that it is not necessary that a way should be used for any
        specific time in order to constitute an acceptance of it as a grant under this
        statute. * * * But it was not said, or intended to be said, that a user for any
        lesser period than seven years would be sufficient for that purpose. On the
        contrary, to hold that a lesser period would suffice in this state would
        violate the terms of the grant made by Congress. The grant is for a right of
        way to establish a public highway, and a public highway must be
        established in some of the ways provided by statute before the grant takes
        effect. * * * The shortest period allowed by statute to establish a highway
        by user in this state is seven years, * * * and no user short of this period can
        therefore be held to be an acceptance of the grant contained in the act of
        Congress cited.”

Nolan, 58 Mont. at 174-75, 191 P. at 153 (asterisks in original) (quoting Vogler, 89 P. at

552).

¶94     As for the character and extent of the use, as explained above, our cases have

consistently required the proponent to prove that the use was, in fact, “public” and over a

definite and fixed course. See e.g. Auchard, 22 Mont. at 16, 55 P. at 362 (“The road must



                                              59
be known and used as a highway common to all the people.” (citation and internal

quotation marks omitted)); Montana Ore-Purchasing, 25 Mont. at 430-31, 65 P. at 421

(“[I]t must appear that the use has been confined to the particular way”; evidence that

people “generally traveled” over open and unenclosed land “in any direction they chose”

supports a conclusion that a public highway was not established.); Violet, 62 Mont. at

342-43, 205 P. at 223 (The alleged public road “must be so situated and so conditioned as

to be available to the public, and the user—the travel—must be by the public generally,

and it must be a way common to all.”); Moulton, 67 Mont. at 509, 218 P. at 1055

(observing that the proponents’ evidence failed “to establish the construction of a road or

its continuous use by the public over a definite and fixed course”; the road at issue “was

used by a few persons for hauling timber from the mountains where it ended,” it “did not

lead to any town, settlement, post office or home,” and there was no evidence that the

county had kept the road in repair or expended any money upon it); Parker, 233 Mont. at

76-77, 78, 758 P.2d at 292-93, 294 (use of the road across Elder’s property by Parker and

her predecessors to access a homestead and ranch buildings was not “public” use); see

also Barnard Realty Co. v. City of Butte, 48 Mont. 102, 107-08, 136 P. 1064, 1066

(1913); Warren v. Chouteau County, 82 Mont. 115, 119, 122-23, 265 P. 676, 678, 679

(1928); Maynard v. Bara, 96 Mont. 302, 307, 30 P.2d 93, 95 (1934); cf. Southern Utah

Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735, 765 (10th Cir. 2005)

(noting that for R.S. 2477 purposes, the Department of the Interior defined “highway” as

follows: “A highway is a road over which the public at large have a right of passage and

includes every thoroughfare which is used by the public, and is, in the language of the


                                            60
English books, ‘common to all the King’s subjects.’ ” (citations and some internal

quotation marks omitted)).

¶95    In the face of this long line of precedent requiring convincing evidence that the

alleged highway was used for the statutorily-prescribed period of time and that the

character and extent of the use was “common to all the people,” the Dissent now argues

that we should abandon our established, predictable approach in favor of a wholly

arbitrary scheme under which use for no particular amount of time and by no particular

number of persons is sufficient to accept the R.S. 2477 offer. As noted, the Dissent offers

no guidelines other than its conclusory assertion that whatever Reese did in the course of

locating the Plymouth Rock Placer and the Plymouth Rock Extension Placer, it

constituted an acceptance.

¶96    This approach was not contemplated by any of our cases during the time period in

which R.S. 2477 was in effect (1866-1976), and I strongly disagree with injecting such

ambiguity and subjectivity into this area of law—not only because of the uncertainty it

would engender with respect to land titles in this state, but also because the Dissent’s

approach lacks any persuasive justification. As the Tenth Circuit aptly observed in

Southern Utah Wilderness Alliance:

       Both right-of-way holders and public and private landowners faced with
       potential R.S. 2477 claims have an interest in preservation of the status quo
       ante. That is best accomplished by not changing legal standards. In [Sierra
       Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988)], this Court observed that
       “R.S. 2477 rightholders, on the one hand, and private landowners and [the
       Bureau of Land Management] as custodian of the public lands, on the other,
       have developed property relationships around each particular state’s
       definition of the scope of an R.S. 2477 road.” 848 F.2d at 1082-83. The
       same can be said of the existence of an R.S. 2477 road.


                                            61
Southern Utah Wilderness Alliance, 425 F.3d at 768; see also Southern Utah Wilderness

Alliance, 425 F.3d at 765 (“This unanimity of interpretation over a great many years is

entitled to weight.”). But even if we were to sever duration of use under R.S. 2477 from

duration of use under the statutory period applicable to prescription, I could not subscribe

to the complete and utter abandonment of any time period or clear guidelines for showing

sufficient public use. None of the authorities cited by the Dissent (see ¶ 86 n. 2, supra)

support such an approach.

¶97    Lastly, aside from the Dissent’s legally unsound position, the Dissent’s entire

argument rests on factual assertions that are not established in the record before us.

Indeed, it could fairly be said that the Dissent engages in wild speculation as to events

and activities that may have taken place during the late 1880s and early 1890s in the area

which ultimately became the Cobban Placer, the Plymouth Rock Placer, and the

Plymouth Rock Extension Placer.        Most notable among those, the Dissent asserts

repeatedly that the road depicted on MS 4200 was constructed no later than, and has been

in use since, 1889 when Reese located the Plymouth Rock Placer. The Dissent also

surmises that this was not simply the only road indicated on the maps and surveys in the

record before us, as the District Court found, but was actually the “sole” means of access

to the Plymouth Rock Placer and the Plymouth Rock Extension Placer.

¶98    There is no factual basis in the record for either of these assertions. No survey or

map in the record shows the road prior to 1893; no records indicate who built the road

and when; and there is no evidence establishing what route(s) Reese used to access the



                                            62
Plymouth Rock Placer. All we know at this point is that the road was in existence by

1893, when i t was described in MS 4200’s field notes as a 6-foot-wide dirt road

traversing the Cobban Placer.      Nevertheless, the Dissent opines that the process of

locating the Plymouth Rock Placer required the construction of a public highway.

Assuming this to be true, however, we do not know whether Reese constructed the

particular 6-foot-wide dirt road at issue; indeed, we do not know whether he continuously

used “a definite, fixed course” over the Cobban Placer or instead accessed the Plymouth

Rock Placer from different points of entry, including the public land that lay to the north.3

¶99    As for whether the road over the Cobban Placer was used by the public, Mineral

Survey No. 5154 (dated September 1897) depicts the road terminating on the Plymouth

Rock Extension Placer. In other words, the road was a dead end. Moreover, as the

Landowners pointed out in their reply brief in support of their motion for summary

judgment, there is no evidence in the record of a substantial mining operation on either

the Plymouth Rock Placer or the Plymouth Rock Extension Placer. Thus, even assuming

the road existed as of 1889 when Reese located the Plymouth Rock Placer, the evidence

presented by OLR thus far does not establish that that the road was “a way common to

       3
         In this regard, I recognize that we may draw inferences from the record for
purposes of evaluating OLR’s motion for summary judgment. However, as the Dissent is
well aware, all reasonable inferences that might be drawn from the offered evidence are
to be drawn in favor of the party opposing summary judgment. Farmers Co-op. Ass’n v.
Amsden, LLC, 2007 MT 286, ¶ 24, 339 Mont. 445, ¶ 24, 171 P.3d 690, ¶ 24; Larsen v.
Western States Ins. Agency, Inc., 2007 MT 270, ¶ 11, 339 Mont. 407, ¶ 11, 170 P.3d 956,
¶ 11; Stokes v. State ex rel. Montana Dept. of Transp., 2007 MT 169, ¶ 7, 338 Mont. 165,
¶ 7, 162 P.3d 865, ¶ 7; Shelton v. State Farm Mut. Auto. Ins. Co., 2007 MT 132, ¶ 13, 337
Mont. 378, ¶ 13, 160 P.3d 531, ¶ 13. Here, the party opposing summary judgment on
OLR’s R.S. 2477 theory is the Landowners; thus, all reasonable inferences that might be
drawn from the offered evidence are to be drawn in the Landowners’ favor.

                                             63
all” and that its use was “by the public generally.”4 Violet, 62 Mont. at 342-43, 205 P. at

223; cf. Brimstone Min., Inc. v. Glaus, 2003 MT 236, ¶ 28, 317 Mont. 236, ¶ 28, 77 P.3d

175, ¶ 28 (holding that use of the road at issue by agents of the mining company for

exploratory purposes and during relatively short periods of time in the summer months

did not constitute continuous use by the public).

¶100 In concluding that a public highway exists, as a matter of law, over the

Landowners’ properties pursuant to R.S. 2477, the Dissent has misstated both the law and

the record. The question of whether the road across the Cobban Placer is a public

highway is an issue properly addressed following the development of a complete factual

record in the District Court and a correct application of the laws governing the creation of

public highways in Montana prior to 1892.



                                           /S/ JAMES C. NELSON




       4
          In this regard, OLR’s proposal is not merely to provide public access to the
Plymouth Rock Extension Placer. It is to provide public access to the Our Lady of the
Rockies statue as well. In other words, OLR proposes essentially to extend the alleged
public right-of-way, by way of a tram, to the top of the Continental Divide. Whether this
use is within the scope of any R.S. 2477 highway that may exist over the Landowners’
properties is questionable. See Southern Utah Wilderness Alliance v. Bureau of Land
Management, 425 F.3d 735, 746 (10th Cir. 2005) (“[T]he scope of an R.S. 2477 right of
way is limited by the established usage of the route as of the date of repeal of the statute,”
i.e., as of October 21, 1976.).

                                             64
Justice Brian Morris dissents.

¶101 The Court’s decision reaches a result at odds with the practical realities of the

history of property ownership in Montana, particularly with respect to the location and

patenting of mining claims in and around Butte. I dissent.

¶102 Courts in construing a statute “may with propriety recur to the history of the times

when it was passed . . .” in order to ascertain the reason for a particular provision. Leo

Sheep Co. v. United States, 440 U.S. 668, 669, 99 S. Ct. 1403, 1405 (1979). The Court

would be well advised to examine the development of the Road at issue in light of the

history surrounding the development of the American West and the public domain. Like

much of Montana history, cases from Butte dominated the early decisions of this Court.

For example, the Court in Talbott v. King, 6 Mont. 76, 9 P. 434 (1886), reconciled the

competing claims to land in the Summit Valley mining district in Silver Bow County.

The Court reconciled competing claims arising from the Lode Mining Act of 1866 and

the General Mining Act of 1872, with claims arising from a patent for the “Butte” town

site issued on September 26, 1877. Talbott, 6 Mont. at 77-78, 9 P. at 435-36.

¶103 Talbott highlights the fact that Montana, like every other western state, is a public

domain state. 25 Stat. 676 (1889). Montana’s lands passed from the public domain to

private and State ownership by Act of Congress. The United States granted Montana

specific tracts for schools and other public purposes in the 1889 Enabling Act. 25 Stat

676. Settlers acquired public lands under the Homestead Act of 1862, 12 Stat. 392, the

Stock-Raising Homestead Act of 1916, 39 Stat. 862, and the Desert Lands Act of 1877,

19 Stat. 377. Miners, like the people who patented the Cobban Placer, acquired public


                                           65
lands under the Lode Mining Act of 1866, 14 Stat. 251, and the General Mining Act of

1872, 17 Stat. 91. The United States used disposal of the public domain alternatively to

civilize the wild frontier, to stimulate the American economy, and to provide structure for

national transportation and distribution of American goods. Robert Tudor Hill, The

Public Domain and Democracy: A Study of Social, Economic and Political Problems in

the United States in Relation to Western Development 48 (AMS Press 1968). These

goals and policies brought thousands of Americans to Montana during the late 19th

century and early 20th century. See Hill, The Public Doman and Democracy at 16.

¶104 One step to promote the goal of developing mineral deposits involved the United

States granting rights-of-way across the public domain for the construction of public

highways through a provision of the 1866 Lode Mining Act, now commonly known as

R.S. 2477. Act of July 26, 1866, ch. 262, § 1, 14 Stat. 251. Section 8 of the Act

recognized and preserved rights-of-way already in existence on the public domain

notwithstanding the issuance of future patents. R.S. 2477; Murray v. City of Butte, 7

Mont. 61, 14 P. 656, 657 (1887). The grant was “open-ended and self-executing.” Sierra

Club v. Hodel, 848 F.2d 1068, 1083 (10th Cir. 1988) overruled on other grounds by

Village of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir. 1992).

¶105 Every acre of Montana land originated in the public domain. 25 Stat. 676 (1889).

Every Montana landowner succeeded the original sovereign landowner. Many of these

landowners took title to the portions of the public domain subject to existing easements

granted pursuant to R.S. 2477. Murray, 7 Mont. at 68-69, 14 P. at 657. Not surprisingly,

the question of whether rights-of-way were in fact created on public land has generated


                                            66
much litigation in light of the fact that “such a right-of-way could have come into

existence without any judicial or other governmental declaration. . . .” San Juan County

v. U.S., 503 F.3d 1163, 1168 (10th Cir. 2007).

¶106 Both the District Court and the Court recognized that the patent issued for the

Cobban Placer incorporates the 1893 survey plat and field notes of survey for MS 4200.

¶ 26; Jefferis v. East Omaha Land Co., 134 U.S. 178, 194-95, 10 S. Ct. 518, 522 (1890).

MS 4200 and the accompanying field notes certainly put any future purchasers on inquiry

notice of the existence of a public easement across the Cobban Placer. More importantly,

the Road existed across the public domain when William F. Cobban and William H.

Lewis located the Cobban Placer in 1892. This fact creates a public road by operation of

law pursuant to R.S. 2477. Moulton v. Irish, 67 Mont. 504, 510, 218 P. 1053, 1055

(1923); Murray, 7 Mont. at 67, 14 P. at 657.

¶107 The District Court erred as a matter of law when it denied summary judgment to

OLR on its R.S. 2477 claim. I address this issue even though neither party raised it on

appeal in light of the fact that the Court undertakes a review of the entire record in

determining the existence of a public road. Reid v. Park County, 192 Mont. 231, 236,

627 P.2d 1210, 1213 (1981). This standard applies to situations, such as the one here,

where concern exists over the ability to rely on the completeness of the record because

the record is extremely old. Garrison v. Lincoln County, 2003 MT 227, ¶ 16, 317 Mont.

190, ¶ 16, 77 P.3d 163, ¶ 16. A review of the entire record reveals that this error of law,

rather than any genuine issues of material fact, prevented the District Court from granting




                                            67
summary judgment to OLR on its claim that the Road was a public road pursuant to R.S.

2477.

¶108 William F. Cobban and William H. Lewis located the Cobban Placer in 1892.

This location of the Cobban Placer in 1892 effectively removed it from the public

domain. California Coastal Com’n v. Granite Rock Co., 480 U.S. 572, 575, 107 S. Ct.

1419, 1422 (1987). The Road initiated on public land to the west and south of the

Cobban Placer and extended through the Cobban Placer to access the Plymouth Rock and

Plymouth Rock Extension Placer at the time that Cobban and Lewis located the Cobban

Placer.

¶109 Pursuant to the General Mining Law of 1872, Cobban and Lewis had the Cobban

Placer surveyed in 1893. They filed the survey, MS 4200, with the U.S. Surveyor

General’s Office on May 20, 1893. Cobban and Lewis perfected title and received their

patent for the Cobban Placer in 1896. Title passed to them from the U.S. Government.

The deed transferring title from the U.S. Government to Cobban Placer referred to MS

4200 and the accompanying field notes.

¶110 MS 4200 depicts the easement crossing the claim and labels it as “ROAD.”

Surveyors mapped the neighboring Plymouth Rock Claims and Plymouth Rock

Extension Placer Mining Claim in 1897. Both surveys depict the Road. Both surveys

depict the “ROAD” as the only road to provide access. The Road has been in existence,

however, at least since 1889 and 1890 when John T. Reese (Reese) located the Plymouth

Rock and Plymouth Rock Extension placer claims. The Road constituted the sole means

of access to the Plymouth Rock and Plymouth Rock Extension claims.


                                         68
¶111 The Road does not constitute some amorphous sheep trail winding hither and yon

across open country as did the one described in State v. Nolan, 58 Mont. 167, 172-73,

191 P. 150, 151-52 (1920). In fact, the Road has appeared without interruption and in the

same location on the following maps and aerial photographs since 1893:

            A Northern Pacific Railway Map dated 1890-1913;
            A GLO map dated 1913;
            The Anaconda Company’s “Hycon” base map dated 1952;
            The U.S. Geological Survey aerial photograph dated 1952;
            The U.S. Geological Survey “Homestake Quad” Map dated 1963-
             1978;
            A General Highway Map – Silver Bow County, indicating the road
             inventory for gas tax apportionment, dated 1948-1989;
            A Federal Aid, Local & City Road System, dated 1977-1986;
            A “Map of Butte & Vicinity” prepared by J. Miller of the Butte-
             Silver Bow/State of Montana Land Appraisal Office dated May
             1986; and
            A “Cadastral Plat,” Montana Department of Revenue—Property
             Assessment Division Butte-Silver Bow Appraisal, indicating the
             “ROAD” as a county road dated January 1999.

¶112 The United States, through R.S. 2477, made an express offer in 1866 to dedicate

unappropriated lands for highways. Lovelace v. Hightower, 168 P.2d 864, 866 (N.M.

1946); Smith v. Mitchell, 58 P. 667, 668 (Wash. 1899). R.S. 2477 expressly provides:

“[t]he right of way for the construction of highways over public lands, not reserved for

public uses, is hereby granted.”    “No question of implied dedication is involved.”

Lovelace, 168 P.2d at 866 (emphasis in original). The Cobban Placer left the public

domain in 1892, well after the United States’s express dedication of easements in 1866

across the public domain through R.S. 2477.




                                           69
¶113 The Court asserts that R.S. 2477 cannot demonstrate federal intent to create an

easement in light of Leo Sheep, 440 U.S. 668, 99 S. Ct. 1403. ¶ 36. Leo Sheep

concerned the proposed creation of a public roadway easement by necessity across land

granted by the United States to the Union Pacific Railroad pursuant to the Union Pacific

Act of 1862 and its unique checkerboard land grant. Leo Sheep, 440 U.S. 680-81, 99 S.

Ct. 1410.     The U.S. Supreme Court determined that the Act specifically listed

reservations to the grant to Union Pacific. As a result, the Court refused to add to the list

of expressly reserved lands contained in the Act “by divining some ‘implicit’

congressional intent.” Leo Sheep, 440 U.S. at 679, 99 S. Ct. at 1409.

¶114 Congress failed to include express easements in the Union Pacific Act of 1862 due

to difficulty in enticing investors into the project of developing a transcontinental

railroad. Congress originally included all of the odd-numbered lots within 10 miles on

either side of the track for the railroad. Congress later upped the ante to 20 miles on

either side of the track when the Union Pacific’s original subscription drive for private

investment proved a failure. Leo Sheep, 440 U.S. at 676-77, 99 S. Ct. at 1408. It is not

surprising in light of these difficulties, therefore, that Congress elected not to encumber

the land granted to the Union Pacific with any reserved easements. The Court refused to

recognize implied easements not enumerated in the Act under these circumstances. Leo

Sheep, 440 U.S. at 679, 99 S. Ct. at 1409; cf. Herrin v. Sieben, 46 Mont. 226, 235, 127 P.

323, 328 (1912) (noting that the United States must have reserved an implied easement

over land granted to the Northern Pacific Railway Company) overruled on other grounds

by Simonson v. McDonald, 131 Mont. 494, 501, 311 P.2d 982, 986 (1957). Leo Sheep’s


                                             70
restriction on recognizing implied easements in the Union Pacific Act of 1862 does not

apply, however, to the Cobban Placer’s public easement that arises from the United

States’s express dedication of easements in 1866 in R.S. 2477.

¶115 The Court in City of Butte v. Mikosowitz, 39 Mont. 350, 102 P. 593 (1909), noted

that R.S. 2477 sought “to enable the public to acquire a roadway over public lands.”

Mikosowitz, 39 Mont. at 355, 102 P. at 595. The Court rejected the notion that R.S. 2477

dictated a particular form of establishing such a road. Mikosowitz, 39 Mont. at 358, 102

P. at 595. The Washington supreme court agreed that state and local officials need not

have any role in accepting this offer of dedication made by the United States: “An offer

of dedication, to bind the dedicator, need not be accepted by the city or county, or other

public authorities, but may be accepted by the general public.” Okanogan County v.

Cheetham, 80 P. 262, 264 (Wash. 1905) overruled on other grounds by McAllister v.

Okanogan County, 100 P. 146, 147-48 (1909). To deny the fact that local authorities

need not take any action to accept the dedication “would be to deny the whole doctrine of

dedication.” Cheetham, 80 P. at 264. The public accepts the United States’s dedication

pursuant to R.S. 2477 “by entering upon the land and enjoying the privileges offered; or,

briefly, by user.” Cheetham, 80 P. at 264. R.S. 2477 constitutes an express dedication of

easements across the public domain. Lovelace, 168 P.2d at 866.

¶116 Admittedly the Court in Nolan rejected as insufficient testimony that a sheep trail

that had been used “since the early 90’s” constituted construction of a road for purposes

of R.S. 2477. Nolan, 58 Mont. at 170, 191 P. at 154. The Nolan Court incorrectly stated

that no public road could be established pursuant to R.S. 2477 without establishing public


                                           71
use for the requisite five-year statutory period before Section 2600 of the Political Code

took effect on July 1, 1895. Nolan, 58 Mont. at 173-74, 191 P. at 154. I must confess my

own recent complicity in perpetrating this erroneous interpretation of R.S. 2477. See

Watson v. Dundas, 2006 MT 104, ¶ 42, 332 Mont. 164, ¶ 42, 136 P.3d 973, ¶ 42. We

noted in Watson that Watson had failed to cite any authority to indicate that the five-year

statutory requirement before July 1, 1895, to establish a public right-of-way by

prescription did not apply.    Watson, ¶ 42.     Such contrary authority surely existed,

however, as evidenced by the clear statement announced by the Court in Moulton.

¶117 The Court in Moulton rejected a claim of a public road leading to some forest

lands in Fergus County because the proponents had failed to demonstrate public use for

the requisite five-year period before July 1, 1895. Moulton, 67 Mont. at 508-09, 218 P. at

1054-55. In reaching this conclusion, however, the Court cautioned that “[w]e do not

wish to be understood as holding that the continuous use of a road by the public for five

years prior to July 1, 1895, was necessary to establish a public highway over

unappropriated public lands in order to meet the requirements of [R.S. 2477].” Moulton,

67 Mont. at 510, 218 P. at 1055 (citing Murray, 7 Mont. 61, 14 P. 656; and Hughes v.

Veal, 114 P. 1081 (Kan. 1911)).

¶118 The Court’s statement in Moulton rejecting public use for any statutory period

comports with the majority position. E.g., Lovelace, 168 P.2d 864; Leach v. Manhart, 77

P.2d 652, 653 (Colo. 1938); Nicolas v. Grassle, 267 P. 196, 197 (Colo. 1928); Hughes,

114 P. at 1083; Wallowa County v. Wade, 72 P. 793, 794 (Ore. 1903); Streeter v.

Stalnaker, 85 N.W. 47, 48 (Neb. 1901); Wells v. Pennington County, 48 N.W. 305, 306


                                            72
(S.D. 1891); McRose v. Bottyer, 22 P. 393, 394-95 (Cal. 1889); Smith, 58 P. at 668. For

example, the court in Hughes agreed that “[a] long user [sic] by the public is not

necessary to an effectual acceptance of a dedication where the owner (the United States

in this instance) has given consent, and is holding out a standing offer to dedicate land for

a highway.” Hughes, 114 P. at 1083.

¶119 It would be counter-intuitive to impose some sort of statutory period relevant to a

prescriptive easement in connection with R.S. 2477.           The United States expressly

dedicated an offer of an easement. Lovelace, 168 P.2d at 866; Smith, 58 P. at 668;

Martino v. Board of County Com'rs of County of Pueblo, 360 P.2d 804, 806-07 (Colo.

1961). The public’s acceptance of that express offer could not be adverse to the United

States. The public’s acceptance of the United States’s express offer of dedication also

cannot be considered prescriptive. Reese accepted this express offer of dedication when

he located the Plymouth Rock in 1889 and the Plymouth Rock Extension Placer in 1890,

and used the Road across the public domain to access them. Reese’s acceptance of the

United States’s express offer of dedication subjected any future claims on the public

domain crossed by the Road to this public easement. Nicolas, 267 P. at 197 (“The

entrymen took title subject, of course, to the right of way.”).

¶120 For example, in Murray the plaintiff brought an action of ejectment against the

City of Butte to recover possession of certain real property situated in Butte.         The

plaintiff relied upon a mineral patent that he had received from the United States. The

City of Butte defended by offering to prove that various streets and roads existed at the

time of plaintiff’s location of the mining claim in question. Murray, 7 Mont. at 66, 14 P.


                                             73
at 656. The trial court refused to allow the City of Butte to introduce the proof and this

Court reversed. Murray, 7 Mont. at 66-67, 14 P. at 657.

¶121 The Court, relying on R.S. 2477, determined that the City of Butte should have

been allowed to prove that it had accepted the grant offered by R.S. 2477. Murray, 7

Mont. at 67, 14 P. at 656. The Court noted that “‘[t]here is no particular form of

ceremony necessary in the dedication of land to public use. All that is required is the

assent of the owner of the land, and the fact of its being used for the public purposes

intended by the appropriation.’” Murray, 7 Mont. at 67, 14 P. at 656-57 (quoting City of

Cincinnati v. White’s Lessee, 31 U.S. 179, 186 (1832) (internal emphasis omitted).

¶122 The Court rejected the plaintiff’s argument that the City of Butte had failed to

object to his patent application or claim an easement at that time. The Court recognized

that “the United States cannot, by patent, convey to any grantee a greater right than it has

at the time of grant.” Murray, 7 Mont. at 68, 14 P. at 657. The Court concluded that an

easement valid against the United States would be valid against the plaintiff. The City of

Butte should have been allowed to prove that the roads in question existed before the

plaintiff had located his property. Murray, 7 Mont. at 69, 14 P. at 657. The logic of

Murray dictates that the existence of the Road across the Cobban Placer at the time of its

location in 1892 demonstrates the acceptance of the public right-of-way authorized by

R.S. 2477. Cobban and Lewis took title to their mining claim subject to the Road.

Murray, 7 Mont. at 69, 14 P. at 657.

¶123 The Court and the Landowners concede that the Road constitutes a private

easement across the Cobban Placer. ¶ 16. The Court fails to explain, however, how such


                                            74
a private easement came to exist. It dismisses as “immaterial” the matter of the private

easement. ¶ 16. The Court concludes that the Cobban Placer patent’s omission of any

expressed reserved easement for a public road defeats the notion of a public road. ¶ 34.

The same patent makes no mention of any private easement either, yet the Court and the

Landowners concede that the Road existed at the time that Cobban and Lewis located the

Cobban Placer in 1892. This “immaterial” concession seems dispositive. Murray, 7

Mont. at 69, 14 P. at 657.

¶124 The Court in Murray confirmed that a claimant took title to a mining claim subject

to any easements valid against the United States when the land comprised the public

domain. Murray, 7 Mont. at 68, 14 P. at 657. Similarly, the court in Hughes recognized

that where the United States, as the owner of the public domain, consents to the easement

“the length of time of the public use is not important, for upon acceptance by use the

rights of the public to an easement immediately passed and vested.” Hughes, 114 P. at

1083. The court in Streeter, likewise interpreted R.S. 2477 as a standing offer for a free

right-of-way over the public domain “and as soon as it was accepted in an appropriate

manner by the agents of the public, or the public itself, a highway was established.”

Streeter, 85 N.W. at 48 (emphasis added) (citing McRose, 22 P. 393).

¶125 The Court curiously relies on Robertson v. Smith, 1 Mont. 410, 417 (Mont. Terr.

1871), for the proposition that R.S. 2477 constituted some sort of implicit reservation.

¶ 39. There Meagher County sought to lay out a public road pursuant to R.S. 2477 across

a mining claim that already had been located and removed from the public domain.

Robertson, 1 Mont. at 413. The Court correctly rejected the public road based upon the


                                           75
notion that “whichever is prior in time is prior in right.” Robertson, 1 Mont. at 418. Here

the Road was “prior in time” as it existed across the public domain at the time that

Cobban and Lewis located the Cobban Placer in 1892. They took title to the Cobban

Placer subject to the existing road. Murray, 7 Mont. at 68, 14 P. at 657.

¶126 The South Dakota supreme court understood Congress’s intent in enacting R.S.

2477 as follows:

       [T]o enable the citizens and residents of the states and territories where
       public lands belonging to the United States were situated to build and
       construct such highways across the public domain as the exigencies of their
       localities might require, without making themselves liable as trespassers.
       And when the location of the highway and roads was made by competent
       authority or by public use, the dedication took effect by relation as of the
       date of the act; the act having the same operation upon the lines of the road
       as if specifically described in it.

Wells, 48 N.W. at 306 (emphasis added); see also Wade, 72 P. at 794.

¶127 The language of Section 2600 of the Political Code comports with this

understanding. The statute provided in pertinent part that “[a]ll highways, roads, streets,

alleys, courts, places and bridges laid out or erected by the public or now traveled or used

by the public . . . are public highways.” Section 2600 (emphasis added). Montana

adopted the language of Section 2600 from the California code that had contained a

similar provision since 1883. Bolinger v. City of Bozeman, 158 Mont. 507, 511, 493 P.2d

1062, 1064 (1972); see also McRose, 22 P. at 394.

¶128 The term “now,” as used in Section 2600, “clearly indicates the intention to leave

intact such rights as the public had already acquired. . . .” Barnard Realty Co. v. City of

Butte, 48 Mont. 102, 110, 136 P. 1064, 1067 (1913).          By contrast, the Legislature



                                            76
expressed its intent that after July 1, 1895, a highway could not be established by use

unless accompanied by some action on the part of the public authorities. Barnard Realty

Co., 48 Mont. at 110, 136 P. at 1067. The Court in Barnard Realty Co. recognized the

distinction between the creation of public highways before 1895, and the creation of

public highways after Section 2600 went into effect on July 1, 1895.

¶129 Reese surely could not have obtained a private easement across the public domain

when he located the Plymouth Rock in 1889 and accessed it by the Road. E.g., United

States v. California, 332 U.S. 19, 40, 67 S. Ct. 1658, 1669 (1947) (stating the general rule

that a party cannot obtain a prescriptive easement against the United States). The Court

deems it “highly improbable that the United States would reserve a public road to access

two mining claims . . .” that had been segregated from the public domain. ¶ 34 (emphasis

in original). Others disagree. A road may be a public highway even though it reaches

but one property owner. Leach, 77 P.2d at 653; Nicolas, 267 P. at 197 (citing 29 C.J.

367). The property owner has the right to use the highway to reach his property and the

public has a corresponding right of access along the highway to the private property.

Leach, 77 P.2d at 653; Nicolas, 267 P. at 197. Thus, Reese had the right to use the Road

to reach the Plymouth Rock when he located it in 1889. King v. Brown, 284 P.2d 214,

215-16 (N.M. 1955) (citing Murray, 7 Mont. 61, 14 P. 656).              The public had a

corresponding right to use the Road to the point that it reached the Plymouth Rock.

Leach, 77 P.2d at 653; Nicolas, 267 P. at 197; Pagels v. Oaks, 19 N.W. 905, 907 (Iowa

1884).




                                            77
¶130 The standard for determining the existence of a public road is whether the record,

taken as a whole, shows that a public road was created. Lee v. Musselshell County, 2004

MT 64, ¶ 14, 320 Mont. 294, ¶ 14, 87 P.3d 423, ¶ 14; Reid, 192 Mont. at 236, 627 P.2d at

1213. We do not require strict proof that the circumstances satisfy the statutory standards

in cases where the documentation is very old in light of the fact that it is more difficult to

rely on the completeness of the record. Lee, ¶¶ 14, 17. We do know, however, that the

Road has been used and in existence since 1889 when Reese located the Plymouth Rock

Placer claim.

¶131 The District Court found that the Road, as depicted on MS 4200 in 1893,

constituted the sole means of access to the Plymouth Rock and Plymouth Rock Extension

claims. Cobban’s and Lewis’s segregation of the Cobban Placer from the public domain

in 1892 had no effect on the public easement, unless his occupation of the claim could

have the effect of extinguishing an existing easement. Easements terminate only by some

method recognized by law. Gerald Korngold et al., Private Land Use Arrangements:

Easements, Real Covenants, and Equitable Servitudes, § 6.01 (2d ed. Juris Publg. 2004).

The common law recognizes numerous legal methods to terminate an easement including

by terms of an agreement, completion of the purpose of the easement, adverse possession,

overuse, alternation of dominant estate, abandonment, estoppel, merger, destruction of

servient estate, and by tax deed, among others.             Korngold, Private Land Use

Arrangements: Easements, Real Covenants, and Equitable Servitudes, §§ 6.02-6.16.

¶132 The Legislature has recognized merger, destruction of the servient estate, acting in

a way inconsistent with the easement, and abandonment of a prescriptive easement for


                                             78
the statutory period as methods to terminate an easement. Section 70-17-111(1)(a)-(d),

MCA. Montana courts also recognize clear and unambiguous easement language, See

Mularoni v. Bing, 2001 MT 215, ¶ 32, 306 Mont. 405, ¶ 32, 34 P.3d 497, ¶ 32, easement

by prescription, Leisz v. Avista Corp., 2007 MT 347, ¶ 16, 340 Mont. 294, ¶ 16, 174 P.3d

481, ¶ 16, and abandonment pursuant to statute, Park County Rod & Gun Club v.

Department of Hwys., 163 Mont. 372, 376-77, 517 P.2d 352, 355 (1973); Section 7-14-

2615, MCA, as methods to extinguish an easement. The intent to abandon, however,

must be clear and unambiguous. Smith v. Russell, 2003 MT 326, ¶¶ 19-20, 318 Mont.

336, ¶¶ 19-20, 80 P.3d 431, ¶¶ 19-20. Cobban’s and Lewis’s location and occupation

upon the Cobban Placer claim does not fall within the ambit of any of the recognized

methods to terminate an easement in Montana.

¶133 I turn next to the question of whether the incorporation of MS 4200 and the survey

field notes into the patent issued for the Cobban Placer created an easement by plat. I do

not agree with all of the Court’s analysis regarding our easement by plat jurisprudence. I

will save most of these disagreements for another day, however, and focus on the two

primary arguments that the Court advances to support its holding that no public easement

by plat exists. The Court first asserts that the easement by plat doctrine does not create

public easements. ¶ 61. The Court next determines that MS 4200 does not clearly

manifest the United States’s intent to grant or reserve a public easement. ¶ 62. I will

address each objection in turn.

¶134 The Court rejects the notion that MS 4200 created a public easement across the

Cobban Placer because i t determines that easements by plat cannot create public


                                           79
roadways. The Court reasons that none of our previous decisions have recognized the

creation of public roadways. ¶ 61. Conversely, none of our previous easement by plat

decisions has determined that easements by plat may not be public. E.g. Loomis v.

Luraski, 2001 MT 223, 306 Mont. 478, 36 P.3d 862; Pearson v. Virginia City Ranches

Ass’n., 2000 MT 12, 298 Mont. 52, 993 P.2d 688; Kelly v. Wallace, 292 Mont. 129, 972

P.2d 1117 (1998); Tungsten Holdings Inc. v. Parker, 282 Mont. 387, 938 P.2d 641

(1997); Ruana v. Grigonis, 275 Mont. 441, 913 P.2d 1247 (1996); Halverson v. Turner,

268 Mont. 168, 885 P.2d 1285 (1994); Bache v. Owens, 267 Mont. 279, 883 P.2d 817

(1994). Nothing in those cases suggests any legal or logical reason to deduce such a

conclusion.

¶135 Moreover, none of the easement by plat cases addressed a situation, such as the

one presented here, where the easement in question was created pursuant to an offer to

the public by the United States, to create a public highway. Cobban and Lewis located

the Cobban Placer on the public domain in 1892. The Road existed across their proposed

claim as Reese had located the Plymouth Rock and Plymouth Rock Extension Placer in

1889 and 1890. The Road provided the only access to these claims. “[P]arties are

presumed to contract with reference to the condition of the property at the time of the

sale, provided the marks are open and visible.” Godfrey v. Pilon, 165 Mont. 439, 445,

529 P.2d 1372, 1375 (1974) (citing Pioneer Mining Co. v. Bannack Gold Mining Co., 60

Mont. 254, 263, 198 P. 748, 751 (1921) (internal emphasis and quotation marks omitted).

¶136 The Road was open and visible in 1893 when the Cobban Placer was surveyed.

Godfrey, 165 Mont. at 445, 529 P.2d at 1375. Cobban and Lewis would have been


                                          80
familiar with the Road when they located the Cobban Placer in 1892 as the Road

provided the only access across the public domain to it. Godfrey, 165 Mont. at 445, 529

P.2d at 1375. MS 4200 merely confirmed these facts. The proper filing of MS 4200 in

the U.S. Surveyor General’s Office on May 20, 1893, as required by law, put all future

purchasers of the Cobban Placer on inquiry notice of the public easement created by the

Road. Halverson, 268 Mont. at 172-73, 885 P.2d at 1288.

¶137 With respect to the Court’s determination that MS 4200 does not clearly manifest

the United States’s intent to reserve a public easement, I would point to the Court’s error

in looking for the United States’s intent in the patent itself transferring title of the Cobban

Placer to Cobban and Lewis. ¶ 29. The plain language of R.S. 2477 provided the United

States’s express intent to grant a public easement. These public easements across the

public domain encumbered future claimants of the public domain over which these public

easements crossed. Murray, 7 Mont. at 68, 14 P. at 657. More importantly, the court in

Standage Ventures, Inc. v. State of Arizona, 499 F.2d 248, 250 (9th Cir. 1974), derided as

“palpably insubstantial” a claim that a public road had not been created pursuant to R.S.

2477 due to the absence of an express reservation in the landowner’s patents. The court

dismissed this argument “particularly since an official plat disclosing the easement was

referred to in the patents and thereby incorporated by reference.” Standage Ventures,

Inc., 299 F.2d at 250 (citing United States v. Otley, 127 F.2d 988, 993 (9th Cir. 1942)).

¶138 We know that the patent here likewise incorporated MS 4200 and the survey

notes. ¶ 26; Jefferis, 134 U.S. at 194-95, 10 S. Ct. at 522. The District Court identified

no fewer than eight deeds involving transfers of portions of the Cobban Placer between


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1961 and 1998 that refer to MS 4200. MS 4200 and the survey notes identified the Road.

Likewise the District Court identified five additional surveys that identified the Road.

Each of these five surveys refers to MS 4200 or other surveys that refer to MS 4200. The

Court’s express concern for the peace of mind of “past, present, and future generations of

Montana landowners,” ¶ 67, rings hollow in light of the evidence in the whole record that

should have put these Landowners on notice of the presence of a public easement across

their property.

¶139 The Court cites Leo Sheep for the proposition that land titles have a special need

for “certainty and predictability.” ¶ 66, (quoting Leo Sheep, 440 U.S. at 687, 99 S. Ct.

1413.) The Court instead should heed the admonition in Leo Sheep to “recur to history of

the times” when the United States in 1866 offered an express dedication of an easement

across the public domain to members of the general public. Leo Sheep, 440 U.S. at 669,

99 S. Ct. 1405. A review of this history would confirm the United States’s intent to offer

an express easement to members of the general public, without any involvement or act by

local officials, to create public easements across the public domain. Moulton, 67 Mont. at

510, 218 P. at 1055; Murray, 7 Mont. at 68, 14 P. at 656-57. Reese accepted that

invitation when he located the Plymouth Rock in 1889 and the Plymouth Rock Extension

Placer in 1890. He accessed these claims by traveling across the public domain on the

Road. I dissent.


                                         /S/ BRIAN MORRIS




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Justices W. William Leaphart and John Warner join in the foregoing dissent.


                                        /S/ W. WILLIAM LEAPHART

                                        /S/ JOHN WARNER




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