                                110.    82-299
                IJ THE SUPREME COURT OF THE STATE OF MONTANA
                 T
                                        1983



RICHARD R. BUTTINGA, et al.,
                         Plaintiffs and Respondents,
         -vs-
GARY W. PRITJGLE, et al.,
                         Defendants and Appellants.




APPEAL FROM:    District Court of the Eighteenth Judicial District,
                In and for the County of Gallatin,
                The Honorable Joseph B. Gary, Judge presiding.


COUNSEL OF RECORD:
         For Appellants:
                Robert R. Throssell, Deputy County Attorney, argued,
                Bozeman, Montana
                Eleanor A. Parker, Dept. of Health, argued, Helena,
                Montana
         For Respondents:
                 Page Wellcome; argued, Bozeman, &Tontana


                                                                       -
                                 Submitted:       June 6 , 1983
                                       Decided:   September 8, 1983



Filed:    SEP 8 - 1983



          L-


                                 Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
        Defendants appeal        from a      judgment of the Eighteenth
Judicial District Court, Gallatin County, granting a writ of
mandamus to the plaintiffs directing Montana Department of
Health and Environmental Sciences (DHES) to certify property
described in a deed as not subject to sanitary restrictions,
and directing the Clerk and Recorder of Gallatin County to
record the deed.        We reverse the judgment.
        Following are the dispositive issues:
        1.    Did the Clerk and Recorder fail to perform a clear
legal duty in refusing to file plaintiffs' certificate of
survey and to record their warranty deed?
        2.    Did the Gallatin County Health Department (GCHD) act
as an agent of the DHES when it denied a county subsurface
sewage disposal system permit to plaintiffs?
        3.    Did the DHES violate a clear legal duty to grant
plaintiffs approval of their subdivision?
        The key facts are contained in the uncontested findings
of fact which include the following:              In 1971 the plaintiffs
planned to purchase five acres of land from J. Huttinga,
father of Richard, for the purpose of erecting a home for the
plaintiffs.         Notwithstanding that the five acres was not a
subdivision under the laws of Montana in 1971, plaintiffs
filed        an   application    for    an   individual   sewage   disposal
installation permit with the GCHD.                 An inspection of the
ground was made by Emery Nelson, Gallatin County Sanitarian.
After the inspection, plaintiffs were never notified by the
GCHD that the septic tank and sewage disposal system did not
comply with the requirements of state law or the regulations
of the County or the State Board of Health, predecessor to
DHES.        The District Court further found that at the time
Emery    Nelson      inspected    the    installation, it was       in   the
process of being constructed.                 At no time in the following
six years did anyone notify plaintiffs that the installation
would not be approved.
        The    District      Court    next     found    that     in    1978    the
plaintiffs applied to the County Clerk and Recorder for the
recording of a deed, which was refused without the sanitary
restrictions being either approved or removed.                         Plaintiffs
then consulted with GCHD and discovered that the department
contended the system was not approved, even though it had
been installed and used for seven years.                  Tests made in 1979
showed no evidence of contamination of the water in the well.
     While not included in the District Court finding of
facts, the uncontested evidence is that the Gallatin County
Sanitarian       assisted     the    plaintiffs       with    the     design   and
specifications         for   the     sewage    system    in    1971,    and    the
plaintiffs installed the              system in accordance with those
plans.        Although Sanitarian Nelson testified at trial that
the system could not be approved because there was ground
water    in    the drainfield trenches in 1971, and                     that the
drainfield       therefore         violated     the     County        regulations
requiring a 2-foot separation between                    the bottom of the
trench    and    the    highest      water    table, the District Court
specifically       found      that    any     such     disapproval      was    not
communicated to the plaintiffs.                  Mr.    Huttinga, Richard's
father, testified that one of the County sanitarians had
"said it was ok to go ahead and fill it."                      The trench was
then covered.      Plaintiffs occupied the trailer house and used
the completed septic system for over seven years.
    After the County Clerk and Recorder refused to record
the deed in 1978, plaintiff Richard Huttinga and Sanitarian
Nelson obtained water samples from above and below the septic
system to test whether the system was polluting the water.
Nelson      testified     he   believed    the State might      approve an
existing system "if it could be shown that water, the water
table, was not being degraded."            Nelson subsequently returned
the $4.00 testing fee to the plaintiffs, explaining that the
DHES would not pass the system for State subdivision review
as it lacked County approval.              In addition, without County
approval, the DHES would not conduct subdivision review and
would not issue its own certificate of approval indicating
there were no sanitary restrictions.
      In    May    of    1979, plaintiffs      attempted   to    file   the
certificate of survey and to record the deed of the 5.002
acres.       The Gallatin County Clerk and Recorder refused to
file the same without the DHES certificate stating there were
no sanitary restrictions.           Without a filed survey, the deed
itself could not be recorded by the County.
      In July of 1979, a tapwater sample was taken by the
plaintiffs, tested by DHES, and found not to be contaminated.
DHES informed the plaintiffs that "these results cannot be
relied upon as indicating the safety of the water at all
times unless the source is properly located and maintained."
In August of 1979, GCHD notified plaintiffs that unless they
complied      with      current,   more    stringent   requirements     for
subsurface sewage disposal systems, GCHD would not approve
the plaintiffs' system.
      On January 31, 1980, plaintiffs petitioned the District
Court for a writ of mandamus ordering the Clerk and Recorder
to   file    the     certificate of       survey and   record the deed.
Following a hearing, the District Court joined DHES as a
party defendant and set a new hearing date.                Prior to that
hearing, the parties stipulated that no additional testimony
would be given and the transcript from the first hearing
would suffice.
      On April 5, 1982, the District Court entered judgment
for the plaintiffs and issued a writ of mandamus ordering the
defendants to certify that the property was subject to no
sanitary restrictions and requiring the Clerk and Recorder to
record the deed.        By subsequent order, the Court awarded
attorneys' fees of $1,539.13 to be borne equally by DHES and
Gallatin County.    Defendants appeal.
      During the pendency of this action, Gary W.               Pringle
succeeded Lucille Bridges as Clerk and Recorder of Gallatin
County.    Because the suit is against the Clerk and Recorder
in his or her official capacity, Pringle has been substituted
for Bridges as a party defendant pursuant to Rule 37(c) (I),
M.R.App.Civ.P.
      Based upon the previously described findings of fact,
which are not contested by the defendants, the District Court
concluded that it was incumbent upon the Gallatin County
Health    Department     to    advise     the     plaintiffs    of   any
disapproval, and that the failure to notify the plaintiffs
for   a   period   of   six   years     after    installation   of   the
drainfield constituted grounds for estoppel under the law.
While the parties agree that Gallatin County is estopped from
disapproving the system, the defendants argue that it is not
appropriate to estop either the Clerk and Recorder, who only
has a duty to file and record or the DHES, which has not
actually participated because no application has been made to
it.
      The issue raised by the Clerk and Recorder is whether
the Clerk and Recorder failed to perform a clear legal duty
by refusing to file the certificate of survey and to record
the deed of the plaintiffs.       Our conclusion is determined by
the   statutes.     Sections    76-3-101        through   76-3-614, MCA
constitute the     chapter entitled       "Montana Subdivision       and
Platting Act."         This chapter controls the survey required in
the present case.        Under section 76-3-104, MCA, a subdivision
comprises     a   parcel    less     than   20    acres   which   has   been
separated from the original tract.               Section 76-3-207(1), MCA
provides that certain divisions of land, even though less
than 20 acres, are not subdivisions under this particular
chapter but are         subject to surveying requirements.               The
Huttinga property meets one of these exceptions, that being a
division outside of a platted subdivision for the purpose of
a gift or sale to a member of the landowner's immediate
family.     Section 76-3-207(1) (b), MCA.          As a result, the tract
here    involved   is     required    to be      surveyed under     section
76-3-401, MCA.          Under this chapter, there is no specific
requirement for sanitary restrictions.
Sections 76-4-101 through 76-4-1251, MCA control sanitation
restrictions      in    subdivisions.       Section       76-4-102 (7), MCA
defines subdivisions under this chapter as parcels containing
less than 20 acres of land.             The key provision is section
76-4-122, MCA, which in relevant part provides:
        "(1) The county clerk and recorder shall not file
        or record any map or plat showing a subdivision
        unless it complies with the provisions of this
        wart.
        "(2) A county clerk and recorder may not accept a
        subdivision plat for filing until one of the
        following conditions has been met:
        "(a) The person wishing to file the plat has
        obtained approval of the local health officer
        having jurisdiction and has filed the approval with
        the department [DHES], and the department has
        indicated by stamp or certificate that it has
        approved the plat and plans and specifications and
        that the subdivision is subject to no sanitary
        restriction    . . .."
While    the survey here         involved is not a plat under the
Montana    Subdivision and         Platting Act,     it covers a tract
defined as a subdivision under section 76-4-102(7), MCA which
comes within the recording provisions referred to in section
76-4-122, MCA.       In addition, under section 76-4-125(2), MCA,
the survey must be submitted for review by the DHES.                         We
conclude that in the present case, before the plaintiffs
could file their survey, they were required to obtain the
approval of the local health officer having jurisdiction and
the DHES was required to certify that the division was not
subject to sanitary restrictions.
      The   plaintiffs       chose    not    to   proceed   by    requesting
approval of the local health officer or of the DHES, and
instead have argued that all parties are estopped from any
position other than an admission that the survey and plat are
subject to - sanitary restrictions.
           no
      The   statutes are       sufficiently        specific      so   that   no
contention can be made that the Clerk and Recorder was under
a duty to file the survey and record the deed under the facts
of   this   case.      The    Clerk    and    Recorder was       statutorily
required to refuse to file the survey and, in the absence of
such a survey, to refuse to record the deed.                In the absence
of the required approvals from the appropriate health officer
and DHES, the statutory obligation of the Clerk and Recorder
to refuse a survey or plat should be enforced.                The Clerk and
Recorder     lacks    discretion       to    accept    a    survey     absent
compliance    with      the    specific      requirements        of    section
76-4-122, MCA.       We therefore hold that the Clerk and Recorder
did not fail to perform a clear legal duty in refusing to
file the plaintiffs' certificate of survey and to record
their deed.
     Did the Gallatin County Health Department act as an
agent of the Department of Health and Environmental Sciences
when it denied a county subsurface sewage disposal system
permit to the plaintiffs?            Finding IX of the District Court
in substance held that the GCHD was a representative and
in substance held that the GCHD was a representative and
agent of the DHES.             As such, the Court found that if the
septic     tank        and     drainfield       did   not      meet    sanitary
requirements, the defendants had a duty to notify plaintiffs
when     the    system       was    being    installed   and    to    stop    the
installation.       This was not done.            The DHES contends there
was no statute or legal principle which would make the GCHD
an agent for the State in 1971.
       In 1971 when the application for the county permit was
made by the plaintiffs, no subdivision review question was
raised.        All that the plaintiffs did was to seek a county
permit from the GCHD.              Plaintiffs have not cited and we have
not located any statute or decision which establishes that in
1971 the GCHD could be classed as agent for the DHES or its
predecessor.       It was not until 1977 that section 76-4-128,
MCA was amended to allow the DHES to delegate to a local
government the authority to review a subdivision if the local
government has qualified personnel to review adequately the
water supply and sewage disposal facilities.                      In State v.
District Court of Thirteenth Jud. Dist. (1976), 170 Mont. 15,
550 P.2d       382, this Court held             that police      officers are
servants of the city and cannot be classed as servants or
agents of the State.           We reasoned that the State exercises no
direct, detailed or daily supervision over a police officer
and is powerless to avoid or prevent negligent acts by them.
We pointed out that the State does not pay, hire or fire the
policemen.       In a similar manner, there is no indication here
that the GCHD was in any way a servant or agent of the DHES,
its predecessor or the State of Montana.                    The statutes show
that the       State     and   its agencies could not exercise any
direct, detailed          or       daily    supervision, or hire       or    fire
employees, or otherwise provide the services, which were the
function of the GCHD in 1971.              The record does not show that
the GCHD in any way acted as agent for the DHES in 1971.
      We hold that the GCHD did not act as an agent of the
DHES when it denied the county sewage disposal system permit
requested in 1971.
      The last issue is whether the DHES violated a clear
legal    duty    to     grant    the    plaintiffs      approval   of     their
subdivision.      As previously discussed, sections 76-4-121 to
76-4-123, MCA prohibit the filing of a map or plat with the
Clerk    and    Recorder       until    DHES    has    certified   that     the
subdivision is not subject to sanitary restrictions.                      Under
the statutes, DHES has the authority and responsibility to
set   standards by        rules      for   determining whether        a   given
subdivision should be approved.                Section 76-4-104, MCA sets
forth the rules and standards to be adopted by the DHES,
which include requiring that a copy of the plat or other
documentation be furnished to DHES; evidence that a water
supply   is     sufficient      in     terms of      quality, quantity     and
dependability; evidence that the potability of water has been
met; evidence that a sewage disposal facility is sufficient
in terms of capacity and dependability; and standards and
technical procedures applicable to sanitary sewer plans and
designs, including         soil percolation,          testing   and     similar
items for on-lot sewage disposal systems.
      As pointed out by the DHES, no application has ever been
submitted to it.         Thus, the DHES has no actual knowledge of
the nature of plaintiffs' system, nor of the plaintiffs'
answer to any of the information which is required to be
furnished to the DHES prior to its determination regarding
sanitary restrictions.           Absent an appropriate application to
the   DHES,     there    is     no   factual    or    statutory    basis    for
estopping the DHES.           The plaintiffs have yet to apply to the
DHES.      We hold that the DHES has not violated a clear legal
duty by failing to approve the plaintiffs' survey.
      We therefore reverse the judgment of the District Court
which determined that the plaintiffs are entitled to a writ
of mandamus directing the Montana Department of Health and
Environmental Sciences to certify that the property described
in   the    deed    is       subject       to    no    sanitary restriction and
requiring the Clerk and Recorder to record the deed.                        We also
reverse the order granting attorneys' fees to the plaintiffs.
      While we do not give advisory opinions, we make the
following comments with the aim of reducing further legal
proceedings.        With its briefs, DHES furnished to the parties
a    form E.S.      91B.            That    form describes the           information
required to be submitted to the DHES in connection with the
sanitary     facilities           here     in    question,       and   requires   the
furnishing of           a    copy of the          survey and other documents
designed     to     allow         assessment          of   the   application.     An
application should now be made by the plaintiffs on form E.S
9 1 B to GCHD and DHES.             GCHD properly may give its approval by
virtue of the basis for estoppel shown in the trial of the
present     case.            DHES    then       can    proceed    to   complete   the
examination        of       the   facilities in question and              determine
whether under all of the facts, an approval of the system is
appropriate so far as it is concerned.
We concur:


 %dQ,
Chief Justice
                &e




Justices

Justice John C. Sheehy concurring and dissenting:
     I agree that Gallatin County Health Department is
estopped from refusing to approve the Huttinga's sewage
system.    It is idle for this Court to suggest a new application

addressed to the Department of Health and Environmental Sciences.
It will automatically refuse to approve the new application.
We should not allow the Huttingas here to suffer further
from bureaucratic bungling.
