                              NO.    90-312
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1990


GRANITE COUNTY,
a Political Subdivision,
           Plaintiff and Appellant,
     -v-
CHARLES KOMBEREC,
           Defendant, Appellant and        sporid



APPEAL FROM:    District Court of the Third Judicial District,
                In and for the County of Granite,
                The Honorable Ted L. Mizner, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
               J. Allen Bradshaw,           ~ranite County    Attorney,
               Philipsburg, Montana
           For Respondent:
                Fred Thomson, Missoula, Montana
           For Amicus:
               Robert L. Deschamps, 111, County Attorney; Martha
               E. McClain, Deputy County Attorney; Missoula,
               Montana


                            Submitted on Briefs:      September 20, 1990
                                           Qecided:   November 1, 1990
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.

     The defendant Charles Komberec appeals the judgment of the
Montana Third Judicial District Court, Granite County, sitting
without a jury, declaring a prescriptive right for a public road
crossing        Komberec's     property       and    enjoining        Komberec     from
obstructing the road.          We affirm.
     Kornberec raises the following issues on appeal:
        (1) Does Granite County have standing to bring an action for

acquisition of a road based on prescription?

        (23    Did the District Court err in holding that the public has
a right of way by prescription across Komberec's property?

        (33    Did the District Court err in ordering that "the Bureau
of Land Management has the right to continue improvements and
maintenance on a limited basis on the road"?
        (43     Did the District Court err in denying attorney's fees
and costs to Komberec on his motion to compel discovery?
     Granite County raises the following issue on cross-appeal:
Did the District Court err in concluding that the road was not a
county        road   created   by   petition        of   the   Deer    Lodge     County
Commissioners in 1889?
     Komberec owns a patented mining claim near Garnet, Montana.
The property is not now enclosed nor has it ever been.                      A single
lane road about eight feet wide crosses Komberec's property on an
east west course and connects several other mining claims with the
small community of Garnet on the west and a county road on the
east.
                                          2
      Ko~nberec presented evidence, including an 1896 Deer Lodge
County road map, that this connecting county road on the east was
originally a northerly spur from a county road created in 1889
which also ran west to Garnet, then called Mitchell, on a more
southerly route.     This route was known as the Springtown-Mitchell
Road.    Komberects evidence tended to show that beyond this county
spur a private road extended to the west connecting more mining
claims, including Komberec's, with the county road spur on the
east.     Eventually this spur road again joined the county road at
a point west of Komberects claim.          This connecting road became
known as the Summit Cabin Road. The portion of Komberect property
                                                        s
through which this road runs became a part of Granite County in
1941. EComberec contended that at some time prior a portion of the
southerly route of the Springtown-Mitchell Road was apparently
abandoned in favor of using this northerly route which connected
the several mining claims. Komberec produced photographic evidence
of a southerly road that could potentially have been the original
Springtown-Mitchell Road created by Deer Lodge County.
      Komberec has owned his claim since 1984.       In June of 1988 he
placed a locked gate across the Summit Cabin Road going through
his     property.     On   October   28,   1988,   the   Granite   County
Commissioners, acting under the belief that the Summit Cabin Road
was a county road, filed a complaint alleging that Komberec had
obstructed a county road crossing his property and requesting a
temporary injunction and a judicial determination of the road's
status.      A   temporary restraining order was issued enjoining
Komberec from interfering with public use of the road pending
judicial determination of its status.      After a non-jury trial,
judgment was entered in favor of the County on March 6, 1990.     The
court held that while the Summit Cabin Road was not the county road
created by petition in 1889, the public had nevertheless acquired
a right to use the road through prescription.     Komberec appealed
the courtts ruling on prescription and the County cross-appealed
on the existence of a statutorily created road.


     Komberec contends that the County does not have standing to
bring an action for acquisition of a public          road based    on
prescription.    Komberec concedes that the County has the authority
under   §   7-14-2107(1), MCA, to acquire rights of way by eminent
domain or petition.    However, Komberec argues ~rticleXI, Section
4 of the Montana Constitution precludes the County from acquiring
roads by other means. He contends that Article XI, Section 4 gives
counties only (1) those powers expressly granted to them by the
legislature and (2) those necessarily implied from the express
grants of power.      This contention lacks merit.     Article XI,
Section 4 of the Montana Constitution provides:
          Section 4 . General Powers. (1) A local government
     unit without self-government powers has the following
     general powers:
             ....
          (b) A county has legislative , administrative, and
     other powers provided or implied by law.
          (2) The powers of incorporated cities and towns
     and counties shall be liberally construed.
The literal language of the Constitution calls for liberal
construction of county powers.      Komberects contentions that a
county's powers are limited to those expressly granted are based
on "Dillon's rule1',the former rule prior to the 1972 Constitution
regarding the powers of local governments that was modified by the
framers     of   the    1972   Montana    Constitution.        See   Montana
Constitutional Convention, v. 11, p.792-793, transcript pp. 2522-
2524, 2530, 2534.         Clearly, under liberal construction of a
county's general powers and its power to acquire roads, the County
has standing to maintain an action on behalf of the public for
acquisition of a road by prescription.             See senerally 5 7-1-
2103(1), MCA, and 5 8 7-14-2101, MCA, et seq.
                                    11.

     Komberec also contends that the District Court erred in
finding   that    the   Summit   Cabin    Road   was    a   public   road   by
prescriptive use.       He argues that the County's evidence does not
satisfy the requirements for a public prescriptive easement.                We
disagree.
     Prescriptive easements may be proved              by public or private
use, but in either case, the party claiming the right must show
open, notorious, exclusive, adverse, continuous and uninterrupted
use of the easement for the full statutory period.            Graham v. Mack
(1984), 216 Mont. 165, 172-173, 699 P.2d 590, 595.             Recently, in
Johnson v. McMillan       (1989), 238 Mont.      393, 778 P.2d       395, we
discussed public acquisition of a prescriptive easement on a
private road:
     That the public may acquire the right by prescription to
     pass over private land is undisputed and such is the law
     in Montana. To establish the existence of a public road
     by prescription    it must be shown that the public
     followed    a   definite    course   continuously    and
     uninterruptedly for the prescribed statutory period
     together with an assumption of control adverse to the
     owner. ...
     By wcontinuous and uninterrupted usew is meant that the
     use was not interrupted by the act of the owner of the
     land, and that the right was not abandoned by the one
     claiming it. ...
     This court has said that to establish a prescriptive
     right it must be shown that the use was adverse and not
     by permission of the landowner. However, the older a
     road the more difficult it usually is to produce the
     proof of actual adverse use because the witnesses are no
     longer usually available.  ...
     [Citations omitted.]
Johnson, 778 P.2d at 396, citing Kostbade v. Metier (1967), 150
Mont. 139, 142-145, 432 P.2d 382, 384-386.
     It is also established that use of an alleged easement for
the full statutory period, unexplained, creates a presumption of
use adverse to the owner which may be overcome by evidence that
the use is permissive. Johnson, 778 P.2d at 396, citing Lunceford
v. Trenk (1974), 163 Mont. 504, 508-509, 518 P.2d 266, 268.
District courts sitting as fact finders occupy the best position
to determine if the use was permissive or adverse.    Johnson, 778
P.2d at 396, citing Lunceford, 518 P.2d at 267.
     In affirming the district court in Johnson, we noted that
there was substantial evidence to support a finding that    public
travelers pursued a definite, fixed course, continuously and
uninterruptedly, for a long period of time (nearly 100 years).
Johnson, 778 P.2d at 396.     In this case, there is substantial
evidence to support the same.    Various witnesses testified that
their use of the road began as early as 1927 or 1928 and continued
up until the present.   The United States Bureau of Land Management
(BLM) used the road for timber management.     The BLM and Champion
Timberlands, Inc. performed maintenance on a portion of the Summit
Cabin Road passing through BLM land in connection with a timber
sale, however, the evidence indicates that Komberec is the only
person to ever perform maintenance on that portion of the Summit
Cabin Road crossing his property.     The witnesses who testified to
using the road themselves also testified that they observed the
general public using the road.   Among the various purposes of the
road testified to were recreational, timber management, fire
protection, snowmobiling access, mining and logging traffic.    The
Granite County Commissioners consider the road to be a county road
created by the petition of and acquired from Deer Lodge County.
     Komberec argues that the County's evidence is insufficient to
establish a public use that would support the creation of a
prescriptive easement.     Generally, seasonal use by      hunters,
fisherman, hikers, campers, use by neighbors visiting neighbors,
and persons cutting Christmas trees and gathering firewood are not
sufficient to establish such a use.    See Medhus v. Dutter (1979),
184 Mont. 437, 443, 603 P.2d 669, 672; Oates v. Knutson (1979) 182
Mont. 195, 200, 595 P.2d 1181, 1184; Taylor v. Petranek (1975),
173 Mont. 433, 439, 568 P.2d 120, 123; Ewan v. Stenberg (1975), 168
Mont. 63, 68, 541 P.2d 60, 63.      However, in this case there was
evidence of uses other than recreational such as mining, logging,
timber management, and fire protection.       There is substantial
evidence to support the elements of a use by the public over a
fixed and definite route for the statutory period.
     The element of   adverse use is also satisfied.    If all the
other elements of open, notorious, exclusive, continuous, and
uninterrupted use are demonstrated, the element of adverse use is
established by presumption.   Parker v. Elder (1988), 233 Mont. 75,
78, 758 P.2d 292, 294.
     Komberec also contends that the County failed to satisfy all
the elements of prescription because it must assert control
tantamount to a declaration that the road is a public roadway. See
Barnard Realty Co. v. City of Butte (1913), 48 Mont. 102, 136 P.
1064. The Barnard decision relies in part on the case of State v.
Auchard (1898), 22 Mont. 14, 55 P. 361.   However, the burden on a
county of demonstrating that it acquired jurisdiction to create a
road has been diminished with the overruling of both Auchard and
Warren v. Choteau County (1928), 82 Mont. 115, 265 P. 676 in Reid
v. Park County (1980), 627 P.2d 1210, 1212-1213.    We decline to
apply the reasoning of this line of cases to cases where a county
alleges that it has acquired a road by prescription. Moreover, the
Granite County Commissioners testified    that they consider the
Summit Cabin Road to be a county road, the one acquired         by
petition of Deer Lodge County in 1889.        Thus, there was an
assumption of control by the County adverse to Komberec.   There is
substantial evidence to support the District Court's finding that
the County acquired the Summit Cabin Road by prescription.


     Komberec also contends that the District Court erred       in
ordering "that the Bureau of Land Management has the right to
continue improvements and maintenance on a limited basis on the
road1'. The record indicates that on occasion the County and the
BLM made verbal agreements    for the BLM to maintain and improve
portions of the Summit Cabin Road      crossing land other than
Komberec's.   Komberec argues that the order is ambiguous as to
whether maintenance by the BLM is a permissive right or the BLM's
duty.   He further argues that it was error for the District Court
to adjudicate rights or duties of the BLM, a non-party in this
suit, and for the District Court to adjudicate maintenance of
portions of the Summit Cabin Road other than that crossing
Komberec's property, the only portion subject to this suit.
     We conclude that the order clearly gives the BLM a permissive
right to maintain the road.   We also note that such maintenance
does not include a right to improve the road where the easement
passes through Komberecls property.      Moreover, we decline to
determine whether the order regarding improvements and maintenance
for the remainder of the road was proper.       Regardless of its
propriety,    Komberec has failed to demonstrate how the court's
ruling will adversely affect him.   To be aggrieved by an order or
judgment and so be entitled to appeal a party must have an interest
in the subject matter of litigation which is injuriously affected
by the judgment or order. Matter of Dearborn Drainage Area (1988),
766 P.2d 228, 231, 234 Mont. 331, 336; Holmstrom Land Co. Inc. v.
Meagher County Newlan Creek Water District (1979), 185 Mont. 409,
425, 605 P.2d 1060, 1069. In this case, because we have ruled that
the County has a prescriptive right to the road, Komberec cannot
be aggrieved by the order because he no longer has an interest in
the road that permissive maintenance by the BLM     will adversely
affect.   See Rule l(b) M.R.App.Civ.P.   We will not reverse unless
error affects the substantial rights of a party.         Dahlin v.
Holmquist (1988), 235 Mont. 17, 21, 766 P.2d 239, 241.           Thus,
Komberec lacks standing to raise this issue on appeal.
                                IV.
     Finally, Komberec contends that the District Court erred when
it denied attorney's fees and costs to Komberec following its order
compelling discovery.     An award of costs and fees on a motion to
compel discovery is governed by Rule 37 (a)(4) M.R. Civ. P., which
provides in pertinent part:
           Rule 37 (a). Motion for order compelling discovery.
     ....
           (4) Award of expenses of motion. If the motion is
     granted, the court shall, after opportunity for hearing,
     require the party or deponent whose conduct necessitated
     the motion or the party or attorney advising such conduct
     or both of them to pay to the moving party the reasonable
     expenses incurred in obtaining the order, including
     attorney's fees, unless the court finds that the
     opposition to the motion was substantially justified
     or that other circumstances make an award of expenses
     unjust .
The language of the rule makes an award of costs and fees mandatory
unless opposition to the motion was either substantially justified
or other circumstances make the award unjust. Komberec argues that
the lower court failed to specify either of these circumstances
and denied the motion for costs and fees stating simply that
sanctions are discretionary.
     It is within the District Court's discretion to decide what
sanctions are to be imposed on a party who fails to comply with
                                 10
discovery rules. Barrett v. Asarco (1988), 234 Mont. 229, 234, 763
P.2d 27, 30; Sikorskiv. Olin (1977), 174 Mont. 107, 111, 568 P.2d
571, 573; Wolfe v. Northern Pacific Railway Co. (1966), 147 Mont.
29, 40-41, 409 P.2d 528, 534.        In interpreting discovery rules,
this Court will reverse the trial judge only when his judgment may
materially affect the substantial rights of the appellant              and
allow a possible miscarriage of justice.          Sikorski, 568 P.2d at
573, Wolfe, 409 P.2d at 534. However, this does not mean that a
trial court has inherent power to apply discovery sanctions. State
ex rel. Burlington Northern Railroad Co. v. District Court (1989),
239 Mont. 207, 219, 220, 779 P.2d 885, 893. While the trial court
has discretion in these matters, the breadth of this discretion is
available to the trial court within the statutory language of Rule
37 without any reference to an inherent power theory.          Burlinqton
Northern, 779 P.2d at 893.
     Here, although the trial court gave no other grounds for
denying Komberec his costs and fees on his motion to compel other
than its discretionary powers, there is evidence in the record to
support   a   finding   that   the   opposition    to   the   motion   was
substantially justified or that other circumstances would make an
award of expenses unjust.      In responding to Komberecrs motion to
compel the County explained that the       information requested was
difficult to gather because the road in controversy was created by
petition in 1889. The County also explained that the BLM had some
of the materials requested and was slow in providing them.             The
trial judge, while declining in his discretion to award costs and
attorneys fees did note in his memorandum opinion that such an
award was a close issue in this case.   considering the explanation
given by the County, this suggests and the record supports that the
trial judge did find that the motion was substantially justified
or that other circumstances would have made an award of expenses
unjust   .
                                v.
     On cross appeal, the County and amicus curiae Missoula County
argue that the current Summit Cabin Road is the road created by
petition of the Deer Lodge County Commissioners in 1889 or that it
is substantially the same road as the one created in 1889 with some
minor variations.    The County relies primarily on Reid v. Park
County, supra, where this Court held that it is sufficient if the
record as a whole shows that a public road was created.        Amicus
iss sou la County cites the case of Central pacific    ail way Company
v. County of Alameda (1932), 284 U.S. 463, 468, 52 S.Ct. 225, 227,
76 L.Ed. 402, 408, for the rule that once the establishment of a
county road has been shown, the continuing identity of that      road
must be presumed until overcome by proof to the contrary.
     These cases are distinguishable from the case at bar.         In
those cases there was no contention that two distinct roads once
existed.     Here, Komberec does not challenge the existence of a
county road created in 1889, as in Reid, for the record as a whole
indeed shows that a public road was created.          Rather Komberec
argues that the Summit Cabin Road is a different road than the
springtown-Mitchell road created in 1889.       Komberec presented
substantial   evidence   to   the   District   Court   to   support his
contention that the Summit Cabin Road is a different road than the
county road created in 1889, thus we will not disturb the District
Court's judgment.
     We affirm the District Court's denial of costs and fees on
Komberec's motion to compel, it's order granting the BLM              a
permissive right to maintain the road, and its conclusion that the
public had acquired a prescriptive right for the Summit Cabin Road.
     AFFIRMED.




We Concur:

~L#F+  Chief Justice
