Summary
The Montana Supreme Court held that Soup Creek Road became a public highway through public use before 1895 under Montana law. The court concluded that the county's refusal to designate the road as a county road did not constitute abandonment, which required an affirmative official act, operation of law, or court order; only the segment crossing the Gibson parcel had been abandoned. The court reversed and remanded for entry of judgment consistent with its opinion.
Topics
Practice areas
Questions Presented
- Whether Soup Creek Road became a public highway under Montana law through public use for the statutory period before July 1, 1895.
- Whether the road was abandoned when county commissioners declined to designate it as a county road in 1895 and declined to approve a proposed extension in 1907.
- Whether the District Court clearly erred by concluding that no public right-of-way existed across the Skeltons' property.
Holdings
- Soup Creek Road became a public highway because it was a definite, continuously used public way for more than the five-year statutory period before July 1, 1895, satisfying section 2600 of The Codes and Statutes of Montana (1895).
- The county commissioners' rejection of petitions to designate or extend Soup Creek Road as a county road did not abandon the road as a public highway.
- A public highway established before 1895 cannot be abandoned by nonuse, reverse adverse possession, or implication alone; abandonment requires an order by the commissioners, operation of law, or a court order.
Key quotations
“The requirement is clear, existing both in statute and the McCauley decision, that a public highway cannot be abandoned by anything short of an order by the commissioners, operation of law, or court order. Non-use is not sufficient to prove intent to abandon.” (439 P.3d at 375-76)
“Soup Creek Road was created prior to 1868 and, because it was in general use for more than five years prior to the passage of § 2600, The Codes and Statutes of Montana (1895), it became a public highway by operation of statute.” (439 P.3d at 376)
Factual background
Soup Creek Road had been used as a public travel way for more than 150 years and was depicted in surveys and public records beginning in 1868. The road crossed the Skeltons' property and provided the only road access to the Gibson parcel. Although county commissioners rejected a 1894 petition to make the road a county road, the road continued to be used and recorded as a highway; in 1910, the commissioners formally abandoned only the segment crossing the Gibson parcel. The District Court nevertheless concluded that the public right across the Skeltons' property had been extinguished.
Procedural history
Soup Creek, LLC and the Skeltons sued to have the portion of Soup Creek Road crossing their property declared private and to deny the Gibsons an easement. The Gibsons counterclaimed that the road was a public highway established by prescriptive use. After a bench trial, the District Court found no right-of-way or easement across the Skeltons' property and concluded any public prescriptive easement had been extinguished by reverse adverse possession and permissive use. The Montana Supreme Court reversed and remanded for entry of judgment consistent with its opinion.
Remand instructions
Remand for entry of judgment consistent with the opinion recognizing that the portion of Soup Creek Road crossing the Skeltons' Lot 7 remains a public highway.