                                                  No.     86-290

                     I N T H E SUPREME COURT OF T H E S T A T E O F MONTANA

                                                        1987




D A N I E L J. O ' N E I L L ,   HELEN P .       O'NEILL,

                        P l a i n t i f f s and. A p p e l l a n t s ,



S T A T E O F MONTANA, a c t i n g by and t h r o u g h
THE DEPARTMENT O F HIGHWAYS of t h e S t a t e
of M o n t a n a ,
                   D e f e n d a n t s and R e s p o n d e n t s .




A P P E A L FROM:       D i s t r i c t C o u r t of t h e Second J u d i c i a l D i s t r i c t ,
                        I n and f o r t h e C o u n t y of S i l v e r BOW,
                        T h e H o n o r a b l e R o b e r t B o y d , Judge p r e s i d i n g .

COUNSEL O F RECORD:

            For A p p e l l a n t :

                        Dunlap & Caughlan;                D e i r d r e Caughlan, B u t t e , Montana

            For R e s p o n d e n t :

                        Stephen F. G a r r i s o n , D e p t .           of H i g h w a y s , H e l e n a ,
                        Montana




                                                        S u b m i t t e d on B r i e f s :   Oct.     30,     1986

                                                            Decided:         February 19, 1987

Filed:      FEB 1 9 B87

                                      &u          *,u   Clerk
                                                                         B
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

        Daniel and Helen O'Neill appeal a Silver Bow County
District    Court    order       granting    summary      judgment    to   the
defendant   State of Montana.               The issues on appeal are:
(1) whether the District Court erred in refusing to consider
an   affidavit      that    appellants      submitted      at   the   summary
judgment    hearing,       and    (2) whether       the    District    Court
properly ruled that there was not a "taking" by the State of
a strip of appellants' real property.             We affirm.
        The appellants own a parcel of land situated at the
intersection of Harrison Avenue and Lowell Avenue in Butte,
Montana.    Both streets have been public thoroughfares in the
City of Butte since the early 1900's.               Appellants purchased
the real property          in question in 1972.            The deed which
appellants received for the property in 1972 describes the
lot's eastern boundary as extending to approximately the
center of Harrison Avenue and the lot's southern boundary as
extending to approximately the center of Lowell Avenue.
        In 1983, the State widened and improved both Harrison
and Lowell Avenues.        The State maintains that Harrison Avenue
has a 100 foot right-of-way, that Lowell Avenue has an 80
foot right-of-way, and that the construction project stayed
within those right-of-ways.            In July 1984, the appellants
filed   a   complaint      in    Silver     Bow   County    District   Court
charging that the State's construction project took strips of
appellants' real property without paying just compensation to
appellants.      Appellants sought no compensation for any land
encompassed      in the pre-1983       Harrison and Lowell Avenues.
      In December 1984, the State filed an answer denying
appellants'      allegations    and    alleging    several        affirmative
defenses.      In September 1985, the State moved for summary
judgment on appellants' complaint.            On February 7, 1986, the
court held a hearing on the motion for summary judgment.                  At
the hearing, appellants presented to the court a brief and an
affidavit in opposition to the motion.            The State objected to
consideration of the documents on the basis that they were
untimely filed.      The court agreed with the State's objection
and refused to consider the appellants' brief and affidavit.

On February 11, 1986, the court granted the State's motion
for summary judgment.         The court ruled that the State had a
prescriptive     right   to    use    the   disputed    land      for public
highway purposes.     This appeal followed.
      The first issue is whether the District Court erred in
refusing    to    consider     appellants'      brief       and    affidavit
presented at the hearing on the motion for summary judgment.
This Court's decision in Marcus Daly Memorial Hospital v.
Borkoski    (Mont.    1981),    624    P.2d    997,    38    St.Rep.    322,
addressed a similar issue.
               Rules 6(d) and 56(c), M.R.Civ.P., require
               the party opposing the motion for summary
               judgment, to file opposing affidavits
               before   the   date   of    the   hearing.
               (Emphasis in original.)
Borkoski, 624 P.2d at 1000.          Here, the trial court found, and
we agree, that appellants made no showing expressing their
reason for the untimely filing.             Moreover, appellants' brief
on appeal advances no compelling reason for their tardiness.
Therefore, as in Borkoski, we find that the trial court did
not abuse its discretion in refusing to consider the brief
and affidavit .
        The second issue is whether the District Court properly
ruled that there was not a "taking" by the State of a strip
of appellants' real property.           The State filed a number of
affidavits with the trial court in support of its motion for
summary judgment.         Among the affidavits was one sworn to by
Raymond Grant, District Engineering Services Supervisor for
the State Department of Highways.              Grant's affidavit states
that,    (1)   he   has   reviewed    the     available public   records
concerning      Harrison     Avenue    and      the   appellants'   lot;
(2) Harrison Avenue and its right-of-way are, and have been,
centered on a section line;             (3)    the roadway surface of
Harrison Avenue has existed in increasing widths since at
least the early 1900's; (4) Harrison Avenue has been a public
road throughout that period;           (5) Lowell Avenue intersects
with Harrison Avenue at the section's quarter corner and has
existed in the same location in various roadway widths since
at least the early 1900's; (6) that he has reviewed at least
five official county plats from as early as 1907-1908, all of
which show Harrison Avenue's right-of-way at the disputed
location as extending fifty feet from the section line on
both sides and totalling one hundred feet in width; (7) the
same plats, including the earliest but with one exception,
show Lowell Avenue's right-of-way to be eighty feet in width,
not centered on the section's quarter corner line; (8) the
one exception mentioned in        (7) shows the right-of-way as
sixty feet; (9) the 1983 project widening Harrison Avenue,
installing sidewalks, and improving the intersection with
Lowell Avenue stayed within Harrison Avenue's one hundred
foot    right-of-way     and    Lowell    Avenue's     eighty       foot
right-of-way;    (10) that the affiant reviewed an official
plat which the county commission had adopted and ordered
filed in March 1921, and which was filed with the county
clerk and recorder in March of that year; (11) that the 1921
plat shows Harrison Avenue as having a one hundred                  foot
right-of-way; and      (12) that it is difficult to determine
much of the history of either avenue due to the age of the
roads and because many relevant records and documents have
been lost or destroyed.
       Robert   Fischer,   a   District   Utility    Agent    for   the
Highway Department, also submitted an affidavit.             In regard
to    the Harrison Avenue        right-of-way    abutting appellants'
property, his affidavit stated that, (1) phone lines have
been    located on the right-of-way to within approximately
eleven   feet of the State's claimed boundary                since 1910;
(2) a water line has been located on the right-of-way since
1914; (3) a sewer line has been located on the right-of-way
to within one foot of the State's claimed boundary since
1971.
        Addressing    the    Lowell   Avenue    right-of-way    abutting
appellants' property, Fischer's affidavit states that, (1)
underground      telephone   lines have been       located to within
sixteen feet of the State's claimed boundary since 1972;
(2)    a gas line (since 1943), a sewer line (since 1971) and
telephone lines       (since 1973) are all located within              the
right-of-way; and       (3) that the affiant has no record that
appellants    or     their   predecessors   in    interest    have    ever
previously complained to the utility companies about these
utility lines (on Harrison or Lowell Avenues).
        Joseph     Micheletti,    the   Highway     Department       Field
Right-of-way Supervisor, also submitted an affidavit.                  His
affidavit states, (1) that the Department purchased a small
triangle of property located at the corner of Harrison and
Lowell Avenues, from the appellants; (2) that on January 22,
1982, the appellants signed a deed which clearly showed the
right-of-ways on Harrison and Lowell Avenues as claimed by
the State; and         (3) the appellants did not object to the
deed,    or    right-of-way      as     shown on    the deed, during the
negotiations for that sale.
        There     is    no   evidence      in   the     record   to    support
appellants' contention that the Harrison Avenue right-of-way
and the Lowell Avenue right-of-way are not one hundred feet
and    eighty    feet, respectively, as            claimed by    the    State.
Appellants did not introduce into evidence any affidavits or
depositions to refute the evidence presented by the State.
        In Sheldon v. Flathead County               (Mont. 1985), 707 P.2d
540,    542,     42    St.Rep.    1573,     1576,     this   Court    recently
reaffirmed the rule that:
                " [i]t is sufficient if the record taken
                as a whole, shows that a public road was
                created.   Otherwise, the burden on the
                public in a particular case to prove a
                public road was created so many years ago
                may well be unsurmountable.         .
                                              . . [ilf we
                did not now overrule Auchard and Warren
                on the jurisdictional issue, a private
                landowner may, in a particular case, be
                able 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. "  (Quoting Reid v. Park
                County (Mont. 1981), 627 P.2d 1210, 1213,
                38 St.Rep. 631, 634.)
        We hold that the record shows that Harrison Avenue and
Lowell Avenue were created with the right-of-ways as claimed
by    the   State.       The     1983    construction     project     occurred
entirely within those right-of-ways.               Thus, there could be no
"taking" by the State.    The official plats showing those
right-of-ways, coupled with the utilities' long, continuous
use of the right-of-ways without objection from appellants,
are sufficient to establish the creation of those avenues.
The record in this case is as adequate, if not more so, than
the record in Reid which this Court found sufficient to
establish the creation of a road.
      The District Court properly granted summary judgment to
the State.   Affirmed.
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                                     /
                                    Justice,&
                                                           \

                                          /
We concur:




Justices
