                                                                                           February 26 2008


                                           DA 06-0815

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2008 MT 70



ROE FAMILY, L.L.C.,

               Plaintiff and Appellee.

         v.

LINCOLN COUNTY BOARD OF COMMISSIONERS,
SCOTT BYE, APRIL BYE, JOHN AUSTIN SARFF,
LESTER BUHLER, JONI BUHLER, GARY W.
MASON, SANDRA MASON, and DOES I THROUGH V,

              Defendants and Appellants.



APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DV 2005-129
                       Honorable Michael C. Prezeau, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Amy N. Guth, Attorney at Law, Libby, Montana

                For Appellee:

                       Debra D. Parker, Attorney at Law, Missoula, Montana



                                                   Submitted on Briefs: October 31, 2007

                                                              Decided: February 26, 2008


Filed:

                       __________________________________________
                                         Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.


¶1     On November 21, 2006, the District Court of the Nineteenth Judicial District,

Lincoln County, granted a declaratory judgment to Plaintiff Roe Family, LLC (Roe

Family). The declaratory judgment established a county road between a piece of property

owned by the Roe Family and an existing county road known as Black Lake Road. The

road established by the declaratory judgment traverses the property of appellant John

Austin Sarff (Sarff). Of the named defendants to this action, Sarff alone appeals the

District Court’s decision. We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2     The Roe Family and Sarff own neighboring properties in north Lincoln County.

The Roe Property was purchased by Willard Roe in 1961, and later transferred to the Roe

Family. The Sarff Property was purchased by Sarff in 1991. Scott and April Bye, and

Sandra and Gary Mason own interests in adjacent properties which were formerly part of

a larger property known as the Madden Ranch. The Madden Ranch borders the Roe

Property to the east. The southeast corner of the Roe Property touches the southwest

corner of the Madden Ranch. The Sarff Property is directly south of both of these

properties, and shares a portion of its northern border with each.

¶3     In the early 20th century, Lincoln County was a part of Flathead County. In 1906,

the Flathead County Commissioners established a road (1906 Road) which was

approximately two and a half miles long, and traversed what is now the Roe Property

from the north, ending at the southeast corner of the Roe Property. The exact location of



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the entire route of the 1906 Road is not known with precision today and discrepancies

exist among the descriptions of the route as contained in the Road Petition, the Notice of

Road Opening, and various maps for the area. However, the instruments creating the

1906 Road do establish three undisputed facts: (1) the 1906 Road was approximately two

and a half miles long, starting north of the Roe Property and running in southeasterly

direction to the southeast corner of the Roe Property; (2) the 1906 Road connected with

an established public highway located near the Madden Ranch; and (3) the 1906 Road

was intended to provide access to a new school house.

¶4    The Black Lake Road is a county road in the vicinity of these three properties and

was established by Flathead County in 1902.         Around 1906, a school house was

constructed on Black Lake Road. As currently located, this road enters the Sarff Property

from the west, eventually turning north until it reaches the border of the Sarff Property

and Madden Ranch. From that point, it heads due east along the southern border of the

Madden Ranch.

¶5    The only current access to the Roe Property is via a short road that splits off from

Black Lake Road at a point approximately 330 feet from the southeast corner of the Roe

Property, heading due west until it reaches that property. This 330 foot section of road

(Roe Road) lies entirely on the Sarff Property. For many years, owners of the Roe

Property have used the Roe Road to reach their property. In 2002, Sarff blocked the use

of the Roe Road.

¶6    On September 7, 2005, the Roe Family filed suit against Sarff and the other named

defendants, seeking a declaratory judgment that the Roe Road was a part of the 1906


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Road formerly established by the county, and a writ of mandamus directing the Lincoln

County Board of Commissioners to take such steps as necessary to keep the road open.

A bench trial was held on November 14, 2006. The District Court heard expert testimony

from a licensed land surveyor hired by the Roe Family named Dawn Marquardt, the

executive assistant to the Lincoln County Commissioners, as well as local residents with

knowledge of the area and surrounding roads. At trial, both the Roe Family and Sarff

were allowed to admit into evidence exhibits which had not been exchanged prior to trial.

One of these exhibits was a map prepared by Ms. Marquardt which described the location

of the various roads in that area, and was relied upon to support her opinion that the Roe

Road should be declared an established county road.

¶7     The District Court ultimately denied the writ of mandamus, but granted the Roe

Family’s claim for declaratory relief. The District Court declared that the Roe Road was

a part of the 1906 Road, and thus an established county road. It is from the District

Court’s decision that Sarff timely appeals.

                                         ISSUES

¶8     We state the issues on appeal as follows:

¶9     Issue One: Did the District Court abuse its discretion by allowing the Roe Family

to admit exhibits which were not exchanged prior to trial?

¶10    Issue Two: Did the District Court err in declaring that the Roe Road was an

established county road?

                               STANDARD OF REVIEW




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¶11    “Admissibility of evidence is within the sound discretion of the trial court and we

will reverse the trial court only if it abused its discretion.” Miranti v. Orms, 253 Mont.

231, 235, 833 P.2d 164, 166 (1992). “An abuse of discretion occurs when a district court

acts arbitrarily without conscientious judgment or exceeds the bounds of reason.” State

v. McCaslin, 2004 MT 212, ¶ 15, 322 Mont. 350, ¶ 15, 96 P.3d 722, ¶ 15.

¶12    “We review a district court’s findings of fact to ascertain whether they are clearly

erroneous. A finding is clearly erroneous if it is not supported by substantial evidence, if

the trial court misapprehended the effect of the evidence, or if our review of the record

convinces us that a mistake has been committed. The standard of review of a district

court’s conclusions of law is whether the court’s interpretation of the law is correct.”

Gelderloos v. Duke, 2004 MT 94, ¶ 22, 321 Mont. 1, ¶ 22, 88 P.3d 814, ¶ 22 (citations

omitted).

                                      DISCUSSION

¶13    Issue One: Did the District Court abuse its discretion by allowing the Roe Family
       to admit exhibits which were not exchanged prior to trial?

¶14    During testimony from Ms. Marquardt, the Roe Family offered four exhibits

which had not been exchanged among the parties before trial. These included a map

prepared by Ms. Marquadt to aid in her testimony, two publicly available tract maps of

the area, and a deed to the school house which had been built on Black Lake Road. At

trial, Sarff objected to the admission of these exhibits because a minute entry dated

October 17, 2006, ordered that all exhibits to be used at trial be exchanged by Friday,

October 20. The District Court noted the objection and expressed frustration that some of



                                             5
these exhibits had not been previously exchanged, but admitted them nonetheless. Later

on in the trial, Sarff also introduced an exhibit which had not been previously exchanged.

This exhibit was admitted as well.

¶15      Sarff now argues that the District Court abused its discretion in allowing the Roe

Family to admit these exhibits into evidence. To prevail on his argument, Sarff must

show that in admitting the exhibits the District Court “act[ed] arbitrarily without

conscientious judgment or exceed[ed] the bounds of reason.” McCaslin, ¶ 15. Sarff has

failed to meet this burden.

¶16      Sarff argues the District Court erred in failing to deny the admission of these

exhibits, forcing him to “shoot from the hip” in responding to them.          In this case,

however, the admission of the exhibits was not arbitrary or unreasonable. As noted by

the District Court during the objections, the map prepared by Ms. Marquadt could have

been done during her expert testimony, but simply would have taken more time.

Moreover, the underlying maps upon which Ms. Marquadt’s map was based were public

records accessible to all parties. Furthermore, the two tract maps and deeds were also

public records to which all parties had access prior to trial. Finally, we note that Sarff

himself was allowed to admit a similar exhibit which had not been exchanged prior to

trial. Under these circumstances, Sarff has failed to demonstrate that the decision to

admit the exhibits tendered by the Roe Family was an abuse of discretion by the District

Court.

¶17      Issue Two: Did the District Court err in declaring that the Roe Road was an
         established county road?



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¶18    Sarff argues that the District Court erred in declaring that the Roe Road was the

final portion of the 1906 Road because the record did not permit the District Court to

“reasonably identify” the Roe Road from the records establishing the existence of the

Black Lake Road and the 1906 Road. Sarff does not dispute that the 1906 Road connects

with the Black Lake Road. However, Sarff asserts the records creating the 1906 Road

demonstrate that it traveled in a southeasterly direction until it met the Black Lake Road,

unlike the Roe Road which travels due east from the southeast corner of the Roe Property

until it meets Black Lake Road. Sarff further notes that he himself testified there are still

remnants of the 1906 Road in the northwest area of his property which continue in a

southeasterly direction until joining with the Black Lake Road. Sarff asserts that these

remnants represent the true course of the 1906 Road. By declaring the Roe Road—which

travels due east from the southeast corner of the Roe Property, instead of southeast as the

1906 Road was described—to be a portion of the 1906 Road, Sarff argues the District

Court committed reversible error.

¶19    The Roe Family urges us to affirm. The Roe Family maintains the 1906 Road

connected with the Black Lake Road, these roads had never been abandoned, and that the

Roe Road still follows the path of an established county road. Roe Family concedes the

exact point at which the 1906 Road originally met Black Lake Road might not be known

with precision today, but asserts that even if the location of the Black Lake Road has

migrated, and the 1906 Road has lengthened to make the connection with it, the Roe

Road still travels the path of an established, and never-abandoned, county road.




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¶20    Our review the record leads us to conclude the District Court did not err in

declaring that the Roe Road was an established county road. As we stated in Galassi v.

Lincoln Co. Bd. of Commrs., 2003 MT 319, 318 Mont. 288, 80 P.3d 84, “ ‘it is sufficient

if the record, taken as a whole, shows that a public road was created. Otherwise, the

burden on the public in a particular case to prove a public road was created so many years

ago may well be unsurmountable.’ ” Galassi, ¶ 12 (quoting Reid v. Park Co., 192 Mont.

231, 236, 627 P.2d 1210, 1213 (1981)).

¶21    Here, the record, taken as a whole, indisputably establishes that the 1906 Road

connects with the Black Lake Road. While the record does not pinpoint precisely where

they met, neither does it establish that the Roe Road is not where the 1906 Road or the

Black Lake Road was originally located. In other words, there was inconclusive proof on

either side of the issue.

¶22    Knowing this, the Roe Family retained an expert witness who visited the area and

examined the Road Petition, the Notice of Road Opening, and a plethora of maps in the

area of these roads. Her credentials and the basis for her opinion were never challenged,

and Sarff presented no expert testimony of his own to contradict Ms. Marquardt. In

addition to the development of her testimony by Roe Family, and her cross examination

by Sarff, the District Court questioned Ms. Marquardt at length concerning her expert

testimony. Based on Ms. Maquardt’s testimony, the District Court concluded that the

discrepancies among the various descriptions of the 1906 Road were not unusual, and

returned to the fact that the descriptions all agreed that the 1906 Road connected with the

Black Lake Road near the Madden Ranch. The current location of the Roe Road is


                                            8
consistent with this description, even though the location of the 1906 Road heading in a

northwesterly direction through the Roe Property is difficult to ascertain. While Sarff

provided testimony of his own that there was another route which was the 1906 Road, it

was not clearly erroneous for the District Court to base its findings on the expert

testimony of Ms. Marquadt, and give less weight to Sarff’s testimony.

¶23    Moreover, as noted by the District Court, the Roe Road was the only road that all

witnesses said they used to reach the Roe Property. Further, the District Court observed

that even if the intersection point between Black Lake Road and the 1906 Road had

migrated at some point, both roads were nonetheless established county roads which had

never been abandoned. Finally, the District Court observed that there was confusion

about the entirety of the 1906 Road, but that there was sufficient evidence before it to

conclude that the final segment of the 1906 Road connected with the Black Lake Road,

and that the location of the Roe Road was an established county road consistent with this

description. Sarff has not identified any evidence establishing that these findings were

clearly erroneous, or that the conclusion that the “record as a whole” showed the Roe

Road was an established county road was in error.

                                    CONCLUSION

¶24    We conclude the District Court did not abuse its discretion in admitting the

exhibits which had not been exchanged prior to trial. Further, we conclude that the

District Court’s findings of fact were not clearly erroneous, and that i t correctly

determined that the Roe Road was an established county road. Thus, we affirm the

District Court.


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                           /S/ PATRICIA COTTER



We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE




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