                                                                                           November 17 2015
                                            DA 14-0780

              IN THE SUPREME COURT OF THE STATE OF MONTANA                                 Case Number: DA 14-0780


                                            2015 MT 323


LETICA LAND COMPANY, LLC,
a Michigan limited liability company,
and DON MCGEE, an individual,

               Plaintiffs and Appellants,

         v.

ANACONDA-DEER LODGE COUNTY,
a political subdivision of the State of Montana,

               Defendant and Appellee.


APPEAL FROM:           District Court of the Third Judicial District,
                       In and For the County of Anaconda-Deer Lodge, Cause No. DV 12-24
                       Honorable Kurt Krueger, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Martin S. King (argued), Jesse Kodadek, Worden Thane P.C., Missoula,
                       Montana (for Letica Land Company, LLC)

                       Mark L. Stermitz (argued), Jeffrey R. Kuchel, Crowley Fleck PLLP,
                       Missoula, Montana (for Don McGee)

                For Appellee:

                       Cynthia L. Walker (argued), Mark A. Thieszen, Poore, Roth & Robinson,
                       P.C., Butte, Montana



                                                    Argued and Submitted: September 16, 2015
                                                                Decided: November 17, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Letica Land Company, LLC, (Letica) and Don McGee appeal the judgment of the

Third Judicial District Court that two roads crossing Letica’s and McGee’s properties in

Anaconda-Deer Lodge County are public roads. Letica and McGee raise several issues

on appeal that we restate as follows:

       1. Whether the District Court erred in concluding that the record, taken as a
       whole, established that Anaconda-Deer Lodge County statutorily created Modesty
       Creek Road’s lower branch terminating in Section 22, Township 6 North, Range
       11 West;

       2. Whether the District Court erred in concluding that the public holds a
       prescriptive easement across Modesty Creek Road’s upper branch.

¶2     We affirm on Issue 1, reverse on Issue 2, and remand for further proceedings.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶3     The disputed portions of Modesty Creek Road1 pass through properties owned by

Letica and McGee. The road includes an upper and lower branch and is located near the

boundary between Anaconda-Deer Lodge County (County) and Powell County in the

Flint Creek Range foothills approximately ten miles north of Anaconda, Montana.

¶4     Modesty Creek Road’s lower branch begins at an intersection with Spring Gulch

Road—an undisputed county road—in Section 19, Township 6 North, Range 10 West.

There is an orange gate on the lower branch at that branch’s intersection with Spring

Gulch Road. The road travels northwest through McGee’s property along Modesty

Creek’s north side and exits the property in Section 24, Township 6 North, Range 11


1
 There is dispute regarding the road’s name and whether it is even a road in places; however,
both parties refer to the road as “Modesty Creek Road” in their briefing and we will do the same.

                                            2
West. There is a green gate where the road exits McGee’s property and enters Letica’s

property. The road passes a short distance over Letica’s property before entering what

the parties refer to as the Launderville parcel—an inholding surrounded entirely by

Letica’s property and now owned by nonparties Thomas and Patricia Donich.                                                    The

District Court concluded that the lower branch reenters Letica’s property in Section 23,

Township 6 North, Range 11 West, and continues west before ending in the eastern

portion of Section 22, Township 6 North, Range 11 West.

¶5     The         upper   branch          splits     from     the          lower       branch       near        the    western

Launderville/Letica property boundary in Section 23, Township 6 North, Range 11 West.

The upper branch travels west/northwest across Letica’s property through Sections 23,

22, and 15, Township 6 North, Range 11 West. The road enters Powell County in

Section 15.         It continues into the Beaverhead-Deerlodge National Forest where it

becomes a United States Forest Service road that accesses a number of lakes.2

                       S 15
       a1 FOrest
                              --Upper Bran h           Launderville Parcel
                                                                                        Green Gate
                                                                               Letica



     S 22                                      S 23                           524
                                                                                               McGee /
                                                                                                     /S 19
                           Letica
                                                                  6N I1N/                                   GN




                                                                                                      Lower Branch -->
                                                                                                                       Orange Gate




2
 The map shown is not included in the record, but it represents an approximate location of the
two disputed branches of Modesty Creek Road as they pass through the various properties
according to maps and exhibits contained in the record.

                                                       3
¶6       In March 1889, the Deer Lodge County Commission3 considered a petition to

establish Modesty Creek Road as a county road. The minutes from the meeting describe

the petition as follows:

         Upon the petition of John N. Nelson, et al. and proof of the posting of
         notices as required by law having been filed with the Clerk, Frank
         Stephens, Geo Jacques and Joseph Marshall were appointed viewers to
         meet April 11, 1889 to view out, locate and report upon the following road
         to wit.

         Beginning at the S.E. Cor[ner] of Sec[tion] 22, T9NR10W,4 Deer Lodge
         Co. MT and running thence due west two miles along the section lines.
         Thence up Modesty Creek along the old road as near as practicable to the
         mouth of Dry Gulch.

Deer Lodge County Commissioners Records, Deer Lodge County Commission Meeting

Minutes, March 21, 1889, Book 6, 373. The Commission met again in June 1889 and the

minutes from that meeting contain the following declaration regarding Modesty Creek

Road:

         Report of Frank Stephens, Joseph Marshall, and Geo Jacques – viewers
         appointed on March 21st and 1889 to view out, locate and report upon a
         road petitioned for by John N. Nelson, et al. met and accepted and the same
         is hereby accepted declared a public highway with the provision that all
         parties interested or benefited by said road bear all expense connected with
         the opening and building of the same.

Deer Lodge County Commissioners Records, Deer Lodge County Commission Meeting

Minutes, June 3, 1889, Book 6, 396. An 1896 County road map shows Modesty Creek

Road’s lower branch generally following the route described above and ending near a



3
 Anaconda-Deer Lodge County was formerly known as Deer Lodge County.
4
  At trial, the parties agreed that “T9NR10W” was a scrivener’s error and should read
                                       -
“T6NR10W.”
     -
                                           4
gulch labeled “Dry Gulch” in an “unsurveyed” portion of Township 6 North, Range 11

West.

¶7      The road traversed only federal public land until the federal government conveyed

the land to the Anaconda Company in 1937.              During the Anaconda Company’s

ownership, testimony at trial indicated that the public regularly accessed both branches of

Modesty Creek Road. In 1965, the Anaconda Company sold the land. A number of

private interests have owned various parcels ever since. Testimony at trial indicated that

the public continued to regularly access both branches until the early 1980s. Ilija Letica

purchased the property in 1989 and transferred the property to Letica in 1997. McGee

also purchased his property in 1997.

¶8      In the mid-1960s, the Launderville parcel’s prior owner, Joe Launderville, fenced

the parcel and placed a gate across the upper branch. Launderville testified at trial that he

locked the gate sporadically in the early 1980s. At around the same time, Letica’s and

McGee’s predecessors in interest installed and locked the orange and green gates across

the lower branch. In the mid-1980s, Shawn DeMers, an area landowner, removed a

culvert at the orange gate at Launderville’s request. The culvert allowed road users to

cross Modesty Creek. The locked gates on the lower branch and the culvert’s removal

restricted public use of both branches. As such, both Letica and McGee maintain that

they were unaware of any claim of public right of access over either branch of Modesty

Creek Road at the time they purchased their respective properties.

¶9      Following a confrontation with Ilija Letica, DeMers and another County resident

asked the County Commission in early 2012 to reaffirm both branches of Modesty Creek

                                          5
Road as county roads and reopen them to the public. The County Commission retained

an attorney to research the road’s history and, on March 6, 2012, voted to reaffirm both

branches as county roads based in part on her opinion and supporting documentation.

Two days later, Letica filed a complaint for declaratory and injunctive relief. Following a

hearing, the District Court issued an order in July 2012 denying Letica’s request for a

preliminary injunction to close Modesty Creek Road.5 McGee joined as a plaintiff in an

amended complaint.

¶10    Prior to trial, the County initially contended that both branches of Modesty Creek

Road were statutorily created. After discovery closed, however, the County located a

road record book that established that the upper branch was not in fact a statutorily

created road.    The County thereafter asserted that a public prescriptive easement

established the upper branch as a public road.

¶11    In a December 2013 order, the District Court denied the parties’ motions for

partial summary judgment. The court also denied Letica’s and McGee’s motion to alter

or amend the July 2012 order to allow gates to be placed on the upper branch based on

the newly-discovered evidence that the upper branch was not a statutorily created road.

The court did, however, allow Letica and McGee to amend their complaint to add a




5
  The court found it unnecessary to address whether a public prescriptive easement was created
on Modesty Creek Road in its July 2012 order denying a preliminary junction. The court,
however, did observe that “the public’s acquiescence of locked gates placed across Modesty
Creek Road for more than 30 years likely extinguished any public prescriptive easement, if one
ever existed.” In a December 2013 order, the court held that sufficient facts remained at issue
for the County’s prescriptive easement claim to proceed to trial.

                                           6
constitutional takings claim based on the same evidence regarding the upper branch. The

court then bifurcated the takings claims from the public right-of-way claims sua sponte.

¶12       The court commenced a five-day bench trial on May 12, 2014.                  The parties

presented extensive evidence regarding whether the County created the lower branch by

petition and whether there is a public prescriptive easement on the upper branch. The

evidence included: the 1889 Commission meeting minutes quoted above; 1896

Commission meeting minutes; various maps that either show or do not show Modesty

Creek Road; lay witness testimony concerning the County’s level of exercise of

jurisdiction over the road; lay witness testimony regarding the road’s use by the public;

testimony from Letica’s and McGee’s expert, Ken Jenkins, a licensed surveyor; historical

documents relating to mining activity in the area; and a site visit with the court, counsel,

and representatives for each party.          Following the trial, the District Court issued a

thorough 74-page findings of fact, conclusions of law, and order in October 2014.6 The

court concluded that Modesty Creek Road’s lower branch was a statutorily created road

ending along the eastern edge of Section 22, Township 6 North, Range 11 West. The

court also concluded that a public prescriptive easement established Modesty Creek

Road’s upper branch as a public road and that the prescriptive easement had not been

extinguished by reverse adverse possession.            The court entered its order as a final

judgment; in mid-November 2014, the court issued an order awarding costs and finding

that “the takings issue is not ripe for ruling or further hearing until after the appeal is

heard.” Letica and McGee appeal.

6
    We would like to acknowledge that the District Court’s order meticulously cited to the record.

                                               7
                               STANDARD OF REVIEW

¶13    We review a district court’s findings of fact to determine if they are clearly

erroneous. M. R. Civ. P. 52(a)(6); Galassi v. Lincoln Cnty. Bd. of Comm’rs, 2003 MT

319, ¶ 7, 318 Mont. 288, 80 P.3d 84 (citation omitted). A finding is clearly erroneous if

it is not supported by substantial evidence, if the district court misapprehended the effect

of the evidence, or if our review of the record convinces us that the district court made a

mistake. Galassi, ¶ 7 (citations omitted). We review a district court’s conclusions of law

to determine if they are correct. Galassi, ¶ 7 (citation omitted).

                                      DISCUSSION

¶14 1. Whether the District Court erred in concluding that the record, taken as a
whole, established that the County statutorily created Modesty Creek Road’s lower
branch terminating in Section 22, Township 6 North, Range 11 West.

¶15    In 1889, the statutory procedures for establishing a county road required, in part:

residents to submit a petition regarding the proposed road to the board of county

commissioners; the posting of public notice of the petition; the board to appoint road

viewers to mark out the road and report back to the board; and the board to approve or

reject the road viewers’ report and provide notice of the road’s opening. Compiled

Statutes of Mont., 5th Div. Gen. Laws §§ 1809-1818 (1887); Oates v. Knutson, 182

Mont. 195, 199, 595 P.2d 1181, 1183 (1979) (summarizing the 1887 statutory procedures

for establishing a county road). The standard for determining the existence of a public

road, however, is not proof of strict adherence to these statutory procedures; rather, it is

whether “the record taken as a whole shows that a public road was created.” Reid v. Park

Cnty., 192 Mont. 231, 236, 627 P.2d 1210, 1213 (1981). We adopted the “record taken

                                          8
as a whole” standard in Reid because “strict compliance with the jurisdictional

requirements to establish a road by petition would pose an unjustifiable burden on the

public to prove a public road created nearly 100 years earlier.” Sayers v. Chouteau Cnty.,

2013 MT 45, ¶ 26, 369 Mont. 98, 297 P.3d 312 (citing Reid, 192 Mont. at 234, 627 P.2d

at 1212).

¶16    As an initial matter, Letica and McGee contend that “[u]nder the circumstances of

this case . . . the ‘finding’ that a county road exists is actually the declaration of a

significant legal right that implicates [Letica’s and McGee’s] fundamental and

constitutionally protected property interests.”      Accordingly, they assert that the

determination whether Modesty Creek Road is a public road is a conclusion of law that

must be reviewed for correctness. Although we have not addressed this issue directly, we

have concluded that under the “record taken as a whole” standard, there must be

“substantial credible evidence” to support a district court’s determination that a road is

public. Jefferson Cnty. v. McCauley Ranches, Ltd. Liab. P’ship, 1999 MT 333, ¶ 35, 297

Mont. 392, 994 P.2d 11 (holding that “substantial credible evidence supported the

District Court’s determination that McCarty Creek Road is a county road”); Galassi, ¶ 16

(concluding “that there was substantial evidence presented to the District Court to support

its finding that RP 81 is a public roadway”). As stated above, the “record taken as a

whole” standard allows for less than strict compliance with the statutory requirements for

establishing a public road. Reid, 192 Mont. at 235-36, 627 P.2d at 1213. Consequently,

the determination whether a road was created by petition requires a district court to make

factual findings—that we review for clear error—and then apply the “record taken as a

                                         9
whole” legal standard to those findings—a conclusion of law that we review for

correctness.

¶17     Letica and McGee generally contend that the court failed to consider adequately

the record as a whole in determining that the lower branch of Modesty Creek Road is a

public road created by petition.     They first argue that the June 1889 Commission

declaration contains a “condition precedent” to the road’s creation because of its

“provision that all parties interested or benefited by said road bear all expense connected

with the opening and building of the same.”         Deer Lodge County Commissioners

Records, Deer Lodge County Commission Meeting Minutes, June 3, 1889, Book 6, 396.

Letica and McGee assert that the court erred by concluding that the lower branch is a

county road created by petition without finding that the county satisfied the condition.

They next contend that under the “record taken as a whole” standard, “the record” must

focus on county records. Therefore, they claim that the District Court failed to consider

adequately the whole record because the “county-created evidence” alone is insufficient

to show the creation of a county road. Moreover, they contend that the “county-created

evidence” shows that the County did not recognize the lower branch as a county road for

nearly 100 years. Finally, Letica and McGee assert that even if Modesty Creek Road’s

lower branch is a county road, the record as a whole establishes that it must end on the

Launderville parcel in the eastern portion of Section 23, Township 6 North, Range 11

West.

¶18     Letica’s and McGee’s assertion that the court had to find the June 1889

Commission declaration’s “condition precedent” satisfied in order to conclude that a

                                        10
county road exists on the lower branch is misplaced. Letica and McGee correctly point

out that the road-creation statutes in effect at the time authorized a county to require the

payment of “expense and damages” by the road’s petitioners. Compiled Statutes of

Mont., 5th Div. Gen. Laws § 1819 (1887). Letica’s and McGee’s argument, however,

does not properly apply the standard we set forth in Reid.

¶19    Reid rejected a standard of strict compliance with statutory procedures where the

applicable documentation might be over 100 years old due to the potential burden on the

public to produce the jurisdictional record. Reid, 192 Mont. at 236, 627 P.2d at 1213.

Here, requiring proof of strict compliance with the declaration’s claimed “condition

precedent” would allow Letica and McGee “to keep the public from going through land

because the public’s records of a road no longer support a determination that the public

had originally acquired jurisdiction to create the road.” Reid, 192 Mont. at 236, 627 P.2d

at 1213. Such a requirement “may well be unsurmountable” and is therefore not required

under the “record taken as a whole” standard. Reid, 192 Mont. at 236, 627 P.2d at 1213.

¶20    We have considered in prior cases numerous statutory conditions of road creation

for which evidence was lacking, and have not found the failure to satisfy one or more

particular conditions to be determinative. E.g., Reid, 192 Mont. at 233, 627 P.2d at 1210

(noting that the record undisputedly lacked copies of the petition showing a description of

the road, that the petition was signed by ten qualified petitioners, and that the

commissioners gave notice to the affected landowners); Lee v. Musselshell Cnty., 2004

MT 64, ¶ 16, 320 Mont. 294, 87 P.3d 423 (no records available, other than corrected

survey notes, demonstrating that the statutory procedures necessary to alter a road were

                                         11
followed); Jefferson Cnty., ¶ 29 (county conceded that a road’s creation was procedurally

deficient). Additionally, but for evidence of the “expense and damages” payment, the

record demonstrates that the lower branch was created in substantial compliance with the

statutory procedures for establishing a county road. Statutes of Mont., 5th Div. Gen.

Laws §§ 1809-1818 (1887). The provision requiring payment of “expense and damages”

is not qualitatively different from the conditions lacking in those cases, and we conclude

that it too is not determinative. Finally, the lack of proof showing payment of expenses

could just as well be evidence that the road declaration did not result in any expenses,

particularly because there was evidence that the road already existed.

¶21    Letica’s and McGee’s contention that the record, taken as a whole, cannot

establish the creation of a county road on the lower branch due to the lack of

“county-created evidence” is unpersuasive because the “record taken as a whole” is not

limited to the “four corners” of the public record. Sayers, ¶¶ 24, 28. In neither Reid nor

its progeny have we required that a district court consider only county records under the

“record taken as whole” standard. E.g., Galassi, ¶¶ 10, 19 (relying in part on the

testimony of three witnesses regarding the road’s location and its use by the public to

conclude that the record taken as a whole established a public road); Jefferson Cnty.,

¶¶ 34-35 (relying in part on a private deed of sale, a non-county map, and testimony of

witnesses to conclude that the record taken as a whole established a public road); Lee,

¶¶ 15, 17 (relying in part on non-county maps to conclude that the record taken as a

whole established a public road).         Moreover, applying Letica’s and McGee’s

“county-created evidence” standard goes directly against our decision in Reid because it

                                        12
would “impose[] an unrealistic burden on the public to prove on the face of the record

that its public officials had jurisdiction to create a public road.” Reid, 192 Mont. at 234,

627 P.2d at 1212 (emphasis added).

¶22    Letica’s and McGee’s parallel assertion that the court erred by failing to consider

that the County did not recognize the lower branch as a county road in county records

likewise is unpersuasive.       Letica and McGee concede that the County recognized

Modesty Creek Road as a county road on the 1896 County road map, but claim that a

1913 County road map showing no county road in the area proves that the County did not

recognize Modesty Creek Road as a county road.7 Letica and McGee have offered no

legal authority suggesting that a county’s failure to depict a road as a public road on

county road maps means the road is not public. In fact, we rejected a similar argument in

Galassi. Galassi, ¶¶ 9, 19 (concluding that the road in question was a public road even

though the road did not appear in the county tract book depicting county roads).

Moreover, Letica’s and McGee’s own expert testified at trial that there could be county

roads that are not shown on county maps.

¶23    Additionally, if recognizing a road on county maps was determinative of whether

a county established a road by petition, the County’s recognition of the lower branch on

the 1896 map would end the discussion because “once a road is established as a public

roadway . . . a county must take affirmative steps to indicate intention to abandon such

road.” Galassi, ¶ 15 (citing McCauley v. Thompson-Nistler, 2000 MT 215, ¶ 31, 301

7
 Letica and McGee argue that the District Court’s findings are clearly erroneous because it failed
even to address the 1913 map. But the court’s finding # 58 expressly acknowledged the maps in
evidence that do not show the road.

                                           13
Mont. 81, 10 P.3d 794). Later county maps that do not depict Modesty Creek Road do

not amount to conduct “so decisive and conclusive as to indicate a clear intent to

abandon.” Baertsch v. Cnty. of Lewis & Clark, 256 Mont. 114, 122, 845 P.2d 106, 111

(1992) (citation omitted) (concluding that the conduct necessary to demonstrate an intent

to abandon “must be some affirmative official act, and not mere implication”).

¶24   We conclude, after reviewing the record, that the District Court properly

considered all of the evidence in determining the make-up of the record as a whole.

Therefore, Letica’s and McGee’s contentions that the court failed to consider adequately

the record as a whole are unconvincing.

¶25   After reviewing the record, we further conclude that the District Court

appropriately relied on Reid and its progeny in determining that the record in this case,

taken as a whole, establishes that the County created Modesty Creek Road’s lower branch

by petition. The March and June 1889 Commission meeting minutes establish that the

statutory requirements for creating a road by petition largely were met. The minutes

demonstrate that residents submitted a petition to the County Commission; the petitioners

posted public notice of the petition; the Commission appointed road viewers to mark out

the road; the viewers reported back to the Commission; the Commission accepted the

road viewers’ report; and the Commission accepted and declared the road as public,

thereby providing notice of the road’s opening.

¶26   Moreover, the rest of the record contains a wide range of evidence that is

sufficient to support the court’s determination.   The record includes other historical

county records such as the 1896 County road map showing the lower branch as a county

                                          14
road, January 1896 Commission meeting minutes approving the map’s creation, and an

historical undated map found in the County’s road record book showing a portion of

Modesty Creek Road.        The record also includes other maps and surveys showing

Modesty Creek Road, including: mining survey maps, homestead entry maps, U.S.

Government Land Office maps, Forest Service maps, and County maps. A number of

disinterested witnesses testified concerning the County’s exercise of jurisdiction over the

lower branch and the public’s regular use of the road. Finally, the record contains

additional documents describing mining activity in the area that would have necessitated

a road running along Modesty Creek.

¶27    Letica’s and McGee’s assertion that the court did not adequately consider maps

that do not depict Modesty Creek Road does not render the findings clearly erroneous

because our review of the record indicates that the District Court did not misapprehend

the effect of the evidence or make a clear mistake. The court specifically found that

Letica’s and McGee’s own expert “agreed that just because a road is not on a county map

does not mean that there is no county road in that location.” Moreover, even when there

is contradictory evidence, “we will uphold the district court if there is substantial credible

evidence to support its findings.” Galassi, ¶ 16 (citing Jefferson Cnty., ¶ 31). The

District Court recounted the evidence in detail, and we hold that there is substantial

credible evidence to support its findings. In light of the facts as found by the District

Court, the court correctly applied the “record taken as a whole” standard in concluding

that Modesty Creek Road’s lower branch is a county road created by petition.



                                          15
¶28       Letica’s and McGee’s remaining contention is that even if the lower branch is a

statutorily created county road, the record as a whole demonstrates that it must terminate

in the eastern portion of Section 23, Township 6 North, Range 11 West. Pursuant to the

March 1889 Commission meeting minutes, the lower branch ends “as near as practicable

to the mouth of Dry Gulch.” Deer Lodge County Commissioners Records, Deer Lodge

County Commission Meeting Minutes, March 21, 1889, Book 6, 373.                                                                                      The parties

disagree about Dry Gulch’s location.

¶29       Letica and McGee again assert that there is not any “county-created evidence”

showing that the lower branch extends beyond the eastern edge of Section 23—relying in

particular on the 1896 County road map. Their reliance on the 1896 County road map is

misplaced because, as the District Court found, Township 6 North, Range 11 West on the

map is “unsurveyed” and therefore does not depict the particular section(s) where Dry

Gulch is located.8
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8
    The map shown is a portion of the 1896 County road map included in the record.

                                            16
¶30    In determining Dry Gulch’s location, and consequently the lower branch’s

terminus, the District Court considered testimony from longtime area residents regarding

their understanding of Dry Gulch’s location, historical maps depicting Dry Gulch, and

historical documents describing Dry Gulch. Moreover, the court conducted a judicial site

visit that confirmed historical placer digging in the gulch found by the court to be Dry

Gulch in Section 22, Township 6 North, Range 11 West. This historical placer digging

evidence corresponds to Dry Gulch’s description in the historical documents the court

analyzed. The court further found that Ken Jenkins’ testimony regarding Dry Gulch’s

location lacked “reliability and credibility.”

¶31    After reviewing the record, we conclude that the court’s findings establishing Dry

Gulch’s location along the eastern portion of Section 22, Township 6 North, Range 11

West, are supported by substantial credible evidence.     The court therefore correctly

applied the “record taken as a whole” standard in concluding that the lower branch

terminates along the eastern edge of Section 22, Township 6 North, Range 11 West.

¶32    Accordingly, we affirm the District Court’s conclusions as to Modesty Creek

Road’s lower branch.

¶33 2. Whether the District Court erred in concluding that the public holds a
prescriptive easement across Modesty Creek Road’s upper branch.

¶34     The District Court determined that there is a public prescriptive easement on

Modesty Creek Road’s upper branch. Letica and McGee argue that this holding was in

error and that, even if the County proved a prescriptive easement on the upper branch, it

was extinguished by reverse adverse possession. Because we find the latter argument


                                          17
dispositive, we assume for purposes of analysis that the District Court correctly found

that a public prescriptive easement had been established.

¶35    Reverse adverse possession may extinguish a public prescriptive easement on a

private road. Pub. Lands Access Ass’n, Inc. v. Boone & Crockett Club Found., Inc., 259

Mont. 279, 856 P.2d 525 (1993) (hereafter Boone & Crockett); Dome Mt. Ranch, LLC, v.

Park Cnty., 2001 MT 289, 307 Mont. 420, 37 P.3d 710. Under § 70-17-111(1)(c), MCA,

a servitude may be extinguished “by the performance of any act upon either tenement by

the owner of the servitude or with the owner’s assent that is incompatible with its nature

or exercise.” Based upon that statutory language, we have held that “if a prescriptive

easement exists, subsequent acts inconsistent with the claim by prescription[ ] support the

conclusion that the prescriptive easement has been extinguished.” Boone & Crockett,

259 Mont. at 290, 856 P.2d at 532 (citations omitted) (construing § 70-17-111(3), MCA

(amended and codified at § 70-17-111(1)(c), MCA; 2007 Mont. Laws 352)). Acts that

are inconsistent with the public’s claim by prescription are assertions of hostile rights that

“must be brought to the attention of the owner [the public] and the use must continue for

the full prescriptive period.” Boone & Crockett, 259 Mont. at 290, 856 P.2d at 531

(citation omitted). The prescriptive period is five years. Sections 70-19-404, to -405,

MCA.

¶36    In considering whether reverse adverse possession extinguished the public

prescriptive easement on the upper branch, the District Court correctly observed that “a

private individual may not obtain title to a public statutorily created road by adverse

possession.” McCauley, ¶ 33 (citation omitted) (stating that “Montana has followed the

                                          18
general rule that title to public roads may not be obtained by adverse possession”). Based

on the lower branch’s status as a statutorily created road, the court determined that it

would be against public policy to allow Letica and McGee to extinguish the public

prescriptive easement on the upper branch by blocking the lower branch. Applying our

precedent to the historic record of Modesty Creek Road, we conclude that the status of

the lower branch is not relevant to the analysis of whether reverse adverse possession

extinguished the public prescriptive easement on the upper branch and we therefore

disagree.

¶37    In Boone & Crockett, a landowner closed the road in question to through traffic by

installing locked gates. Boone & Crockett, 259 Mont. at 288, 856 P.2d at 530. The

landowner subsequently created a walk-in program allowing public access to public land

beyond his property. Boone & Crockett, 259 Mont. at 289-90, 856 P.2d at 530-31.

Anyone who wanted to drive the road beyond the walk-in point had to get landowner

permission. Boone & Crockett, 259 Mont. at 288-89, 856 P.2d at 530-31. We concluded

that these actions “evidenced a ‘distinct and positive assertion of a hostile right’” to the

public’s claimed prescriptive easement. Boone & Crockett, 259 Mont. at 290, 856 P.2d

at 531 (quoting Taylor v Petranek, 173 Mont. 433, 438, 568 P.2d 120, 123 (1977)). The

landowner, we reasoned, “established reverse adverse possession because the state and

local government, as well as the public[,] cooperated and adhered to the walk-in policy

which had been in existence for approximately 17 years.” Boone & Crockett, 259 Mont.

at 290, 856 P.2d at 532. We held that such compliance with the road access restrictions

“was inconsistent with the claim of a public prescriptive easement. Accordingly, any

                                         19
prescriptive easement the public may have acquired in the road was lost.” Boone &

Crockett, 259 Mont. at 291, 856 P.2d at 532.

¶38    In Dome Mountain Ranch, the Park County Commissioners declared the subject

road a public road for the first time in 1994 after the public requested that the road be

opened as a county road. Dome Mt. Ranch, LLC, ¶ 8. A previous landowner, however,

had placed gates across the road in 1965 that often were locked. Dome Mt. Ranch, LLC,

¶ 6. The locked gates remained until 1998. Dome Mt. Ranch, LLC, ¶ 24. The record

further established that “although members of the public occasionally used the road . . .

after gates and no trespassing signs were erected, such use was for recreational

purposes.” Dome Mt. Ranch, LLC, ¶ 24. We concluded that “Park County and the

public’s acquiescence of locked gates being place[d] thereon for approximately 30 years

extinguished Park County’s public prescriptive easement, if one existed, on the subject

road.” Dome Mt. Ranch, LLC, ¶ 25.

¶39    Here, similar to Boone & Crockett and Dome Mountain Ranch, the record includes

substantial evidence that locked gates on the lower branch blocked public access to the

upper branch from 1980 until 2012.        At trial, Letica’s predecessor in interest, Cal

Christian, testified that he installed and locked the green gate on the lower branch in 1980

after witnessing a number of vehicles on the property during hunting season. He also

testified that the orange gate was installed and locked in the early 1980s. Cal’s son

Clayton Christian, who worked at the property, testified that the family placed ads in the

paper to let the public know that they were restricting access to the property. Moreover,

Cal Christian testified that the County never complained to him about the gates’

                                         20
placement and that the gates remained locked when he sold the property to Letica in

1989.

¶40     Launderville, whom Letica employed from 1994 to approximately 2004, testified

that the orange and green gates were installed and locked in the early 1980s and remained

locked during the time he worked for Letica. He also testified that in the early to

mid-1980s, DeMers removed a culvert at the orange gate, further hindering road access

because the culvert allowed road users to cross Modesty Creek. The culvert was not

replaced until 2002. Launderville testified that during those approximately twenty years

he was unaware of anyone traveling that route beyond the orange gate. Ilija Letica

testified that both the orange and green gates were locked continuously from the time he

bought his property in 1989 until 2012 when the County declared both branches of

Modesty Creek Road county roads.        He further testified that no one, including the

County, requested that the locks on the gates be removed during his ownership of the

property.

¶41     Additionally, the vast majority of testimony concerning the public accessing the

upper branch came from witnesses who traveled the road prior to the gates’ installation in

the 1980s. Jim Heaphy, a longtime area resident, testified that he traveled the upper

branch to access the lakes on the National Forest beginning in the late 1950s but that he

stopped using the road once the gates were locked on the lower branch because he

considered it trespassing. Other members of the Heaphy family similarly testified to not

traveling the upper branch once the gates were installed but said that they accessed the

lakes by Forest Service trails instead. Charles Fudge, a district ranger for the Deer Lodge

                                        21
Ranger District, testified to using the upper branch to inspect dams on the lakes until

1976. Thomas Radonich, a longtime area resident, testified to traveling the upper branch

to access the lakes in the 1940s and 1950s.

¶42    Connie Ternes-Daniels, a County Commissioner from 1987 to 1990, testified that

she traveled the upper branch in the late 1960s and did not travel up there again until the

gates’ removal. She further testified that she knew about the gates on the lower branch

during her tenure as Commissioner.        John Thomson, the County Road Department

foreman from 1971 to 1989, testified that he knew about the locked gates but did not take

any action to open them. He testified that the issue of the locked gates was “turned over”

to the County Commission and that, as far as he knew, no action was taken. He further

testified that the gates remained locked when he retired in 1989.         Larry Sturm, the

County Road Shop supervisor from 1993 to 2014, testified that he knew of the locked

gates on Modesty Creek Road but did not take any action to remove them until the

County reaffirmed the road as a county road in 2012. In contrast, he testified that he cut a

lock off of a cable that McGee put across Spring Gulch Road—an undisputed county

road—“as soon as we found out about it.”9 He further testified that he promptly cut locks

off of a gate installed by DeMers on Spring Gulch Road when he was “made aware of it.”

¶43    Modesty Creek Road’s lower branch provides access to the upper branch.

Therefore, the installation and locking of the green and orange gates on the lower branch,


9
 Sturm testified that McGee put the cable across the road in the springtime when the road was
“very, very muddy” in order to keep people from tearing up the road. Sturm removed the cable
but did allow McGee to put up signs stating, “road closed due to muddy conditions or
something.”

                                         22
plus the culvert’s removal, restricted public access to the upper branch. Such acts by the

various landowners evidence a “distinct and positive assertion of a hostile right” to the

public’s claimed prescriptive easement on the upper branch. Boone & Crockett, 259

Mont. at 290, 856 P.2d at 531. Additionally, the testimony of the various witnesses

demonstrates that the County and the public “acquiesce[ed to] locked gates being

place[d] thereon for approximately 30 years.” Dome Mt. Ranch, LLC, ¶ 25.

¶44    Like in Boone & Crockett, the public had to get permission to access the upper

branch once the landowners installed the gates. At trial, Cal Christian testified that as far

as he was aware, the public never came through the green gate without his permission

during his ownership of the property. Ilija Letica testified that during his ownership the

public did not travel either branch of Modesty Creek Road and that the Forest Service

asked for permission to travel the upper branch onto the National Forest. Other witness

testimony evidences permissive use of the upper branch by the public following the

gates’ installation in the 1980s. Dave Beck, whose family had water rights in a lake

accessed by the upper branch, testified that his family had a key to the gates in the 1980s

to access their water rights. Dan Kelley, who leased the Launderville parcel for grazing,

testified that he had a key to the gates and had permission to go through the gates. Gerald

Wendt, a former County employee, testified that he got permission from Cal Christian to

access the area for trapping and had keys to the gates. Leo Nicholes, a longtime area

resident who also had water rights in the lakes, testified that he had a key to the gates in




                                         23
order to access his water rights by way of the upper branch.10 The record demonstrates

that for the most part, “the public cooperated and adhered” to the permissive use policy

following the gates’ installation. Boone & Crockett, 259 Mont. at 290, 856 P.2d at 532.

The public’s asking for permission to use the upper branch and not regularly traveling

beyond the locked gates to the upper branch without landowner permission is

“inconsistent with the claim of a public prescriptive easement” over the upper branch.

Boone & Crockett, 259 Mont. at 291, 856 P.2d at 532.

¶45    Although Launderville testified that people sometimes cut fences in order to

access the upper branch, occasional public use is not sufficient to conclude that reverse

adverse possession did not extinguish the claimed prescriptive easement. Dome Mt.

Ranch, ¶¶ 24-25. Moreover, on cross-examination, Launderville testified that when he

worked for Letica he made an effort to prevent people from getting around the gates and

accessing the upper branch. He further testified that a few specific individuals—DeMers

and Rich Bowbent—were the principal offenders and that they traveled a route different

from the upper branch after cutting the fence in order to access their pasture land on a

neighboring section.

¶46    The District Court is correct that a person may not obtain title to a statutorily

created road by adverse possession. But Letica’s and McGee’s claim to Modesty Creek

Road’s lower branch—which now has been determined to be a statutory road—does not

determine as a matter of law the status of the upper branch—which is not a statutory

10
  Many water rights holders testified that they received permission to access their water rights
via the upper branch. Ilija Letica testified that water rights holders would continue to have
permissive access to the lakes via the upper branch.

                                           24
road— on the basis of the record in this case. The District Court premised its conclusion

that the prescriptive easement “was not extinguished by reverse adverse possession” on

an erroneous determination that “access to the road was never restricted in an adverse

way to the public for the statutory period.” Installing locked gates that blocked access to

the upper branch well in excess of the statutory period, removing the culvert at the orange

gate, and requiring permission to access the road beyond the gates all are acts that are

incompatible with the nature or exercise of the public’s claimed prescriptive easement

over the upper branch. Although it ultimately turns out that the gates on the lower branch

were blocking a public road, the record demonstrates that for thirty years everyone

acquiesced in the understanding that these were private roads, and the owners of the

subsequently claimed public prescriptive easement—the public—assented to these

assertions of hostile rights by the landowners.

¶47    By declaring the upper branch a county road for the first time in 2012, the County

recognized that the landowners had asserted hostile rights for the previous thirty years.

In this case, such a declaration “30 years after the . . . gates . . . were in place” is

irreconcilable with the County’s public prescriptive easement claim. Dome Mt. Ranch,

LLC, ¶ 25 (noting that the public did not request, and the county did not declare, that the

road be opened as a public road until approximately thirty years after gates and “no

trespassing” signs were in place).      The evidence illustrates that, given the historic

understanding of the road’s ownership since the Anaconda Company days, this case is

not about a landowner intentionally and illegally blocking a public road and then trying to



                                         25
gain reverse adverse possession.11 Accordingly, it is not dispositive that the gates were

installed on the lower branch. The public policy concern to which the District Court and

the Dissent refer is not “at stake in the present case,” Dissent ¶ 55, because the Modesty

Creek gates were “known to[] and acquiesced in by” the County. Boone & Crockett, 259

Mont. at 283, 856 P.2d at 527.

¶48    Moreover, Montana statute provides that a prescriptive easement may be

extinguished “by disuse of the servitude by the owner of the servitude for the period

prescribed for acquiring title by enjoyment.” Section 70-17-111(1)(d), MCA. The period

prescribed for acquiring title by enjoyment is five years. Section 70-19-404, MCA. The

record establishes that the general public essentially abandoned the upper branch for

thirty years by not using it.

¶49    We conclude that the District Court erred in its application of the law regarding

reverse adverse possession to the facts existing on the upper branch.             The court’s

conclusions of law therefore are incorrect. Accordingly, we reverse the District Court as

to Modesty Creek Road’s upper branch.

                                      CONCLUSION

¶50    We affirm the District Court’s conclusion that Modesty Creek Road’s lower

branch is a statutorily created public road. We also affirm the court’s findings as to the

lower branch’s terminus. We reverse its conclusion that the public prescriptive easement

it found on Modesty Creek Road’s upper branch was not extinguished by reverse adverse

11
  Nor is this case about blocking access to public land. It is undisputed that the same National
Forest land accessible from the upper branch is also accessed by a public road leading to a
developed campground nearby.

                                           26
possession. The case is remanded for entry of an amended judgment consistent with this

Opinion and for further consideration of Letica’s outstanding bifurcated claim.



                                                /S/ BETH BAKER

We concur:

/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE



Chief Justice McGrath, dissenting.

¶51   I concur in the majority’s resolution of Issue 1, that the lower branch of Modesty

Creek Road was established as a county road by Anaconda-Deer Lodge County (or its

predecessor) according to the requirements of Montana Law.

¶52   I dissent from the majority’s resolution of Issue 2 and would uphold the District

Court’s determination that the public holds a prescriptive easement to travel the upper

branch of Modesty Creek Road.

¶53   The District Court determined that there was “compelling evidence” that the lower

branch of Modesty Creek Road was a public road, established by Anaconda-Deer Lodge

County in 1889. Because it was a county road, the landowners were not able to establish

prescriptive rights over the road as a matter of law. McCauley v. Thompson-Nistler, 2000

MT 215, ¶ 33, 301 Mont. 81, 10 P.3d 794. The District Court further determined that

there was no evidence that the landowners in this case “took any legal steps before


                                        27
locking the orange gate and blocking access” to the lower branch road and had no legal

right to do so.

¶54    Under these circumstances the District Court determined that it would violate

public policy to allow Letica to extinguish a public prescriptive easement over the upper

branch road by illegally closing the lower branch road. As the District Court stated:

       Thus, it would be improper for this Court to adopt a policy that allows an
       individual to illegally block a public statutorily created road (the lower
       branch road) and claim that the public prescriptive easement (over the
       upper branch road that branches off the lower branch road nearly a mile
       down from the orange gate) is extinguished by reverse adverse possession.
       Such a holding would be against public policy.

¶55    The majority disagrees with the District Court, citing Boone and Crockett and

Dome Mountain Ranch. Those cases hold that a public prescriptive right to travel a road

(as opposed to a road established and owned by a public entity) may be taken by reverse

adverse possession. However, neither case considers the public policy issue at stake in

the present case.

¶56    The majority concludes that “the status of the lower branch is not relevant to the

analysis of whether reverse adverse possession extinguished the public prescriptive

easement on the upper branch. . . . .” Opinion, ¶ 36. To the contrary, but for the illegal

gates installed across the county road on the lower branch, there was no barrier or

impediment to public use of its prescriptive easement on the upper branch road. This

case would not exist but for the unlawful closure of the lower branch road.

¶57    I would uphold the District Court and conclude that a person may not illegally

block a road created by action of a public governmental entity, and then use that blockage


                                        28
as evidence to support a claim of reverse adverse possession that extinguishes the

public’s prescriptive right to any other property or interest in property.

¶58    I dissent.


                                                  /S/ MIKE McGRATH


Justice Michael E Wheat joins the Dissent of Chief Justice Mike McGrath.


                                                  /S/ MICHAEL E WHEAT




                                          29
