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Glen and Johanna Wohl v. City of Missoula and John Does 1-20

February 27, 2013

GLEN AND JOHANNA WOHL, ET AL., PLAINTIFFS, APPELLEES AND CROSS-APPELLANTS,
v.
CITY OF MISSOULA AND JOHN DOES 1-20, DEFENDANTS, APPELLANTS, AND CROSS-APPELLEES.



APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 05-389 Honorable Edward P. McLean, Presiding Judge

The opinion of the court was delivered by: Beth Baker

Submitted on Briefs: September 12, 2012

Decided: February 26, 2013

Filed:

Clerk

Justice Beth Baker delivered the Opinion of the Court.

¶1 Plaintiffs are a group of landowners (Landowners*fn1 ) who own properties abutting South Avenue in the City of Missoula. The instant lawsuit arose out of a dispute between Landowners and the City concerning the width of the public right-of-way constituting South Avenue. Following a bench trial, the Fourth Judicial District Court, Missoula County, determined that the right-of-way is 60 feet wide. Therefore, because the City's recent improvements to South Avenue extend beyond this 60-foot parameter, the District Court concluded that the City had effected a taking of property. The District Court awarded Landowners compensation for the taking, plus a portion of their requested costs and attorney's fees. The City now appeals, and Landowners cross-appeal.

¶2 We consider the following issues:

1. Whether the District Court erred in determining that the City's right-of-way constituting South Avenue is limited to 60 feet in width.

2. Whether Landowners are entitled to compensation for a taking of property.

3. Whether the District Court applied an incorrect measure of compensation.

4. Whether Landowners may recover their costs and attorney's fees.

5. Whether the District Court abused its discretion in denying Landowners "fees for fees" and in directing counsel not to pass certain fees on to his clients.

6. Whether the District Court abused its discretion in denying Landowners damages and fees under 42 U.S.C. §§ 1983 and 1988.

We affirm as to Issues 1, 2, 4, and 6. We reverse as to Issue 3, affirm in part and reverse in part as to Issue 5, and remand for further proceedings on these two issues.

BACKGROUND

¶3 At the outset, it is helpful to explain how the land in question is situated. Like other western states, land in Montana is divided into tracts called townships, each of which is six miles square. Townships, in turn, are subdivided into 36 numbered tracts called sections, each of which is one mile square. See Yellowstone River, LLC v. Meriwether Land Fund I, LLC, 2011 MT 263, ¶¶ 6-7, 362 Mont. 273, 264 P.3d 1065. Diagram I depicts a standard township of 36 sections.

DIAGRAM I

1 mile 6 miles

A township's location is identified relative to an east-west base line and a north-south principal meridian. Yellowstone River, ¶ 6. The disputed land in this case is located in Sections 29 and 32 of Township 13 North, Range 19 West, Montana Principal Meridian.

¶4 South Avenue runs in an east-west direction on the south section line of Section 29 (which is also the north section line of Section 32). At issue is the one-half-mile segment of South Avenue between Section 29's southwest corner and south quarter corner. For clarity, a quarter corner is the point on a section line midway between the two section corners. See Joyce Palomar, Patton and Palomar on Land Titles vol. 1, § 116, 296-97 (3d ed., West 2003); Walter G. Robillard & Lane J. Bouman, Clark on Surveying and Boundaries § 9.13, 248 (7th ed., Lexis Law 1997). This portion of South Avenue is located between the intersection with Reserve Street (on the west) and the intersection with Johnson Street (on the east). Diagram II shows the general layout of the streets in this area (not to scale). The relevant portion of South Avenue is shaded.*fn2

DIAGRAM II Sussex Avenue 30 29 31 32 ← South Avenue → (Quarter Corner ) ( Section Line ) Livingston Avenue

¶5 This area was part of Missoula County until the 1980s, when the City of Missoula began annexing various portions of it. The City annexed the South Avenue right-of-way in 1989. The City considers South Avenue a "principal arterial." In the mid-1990s, the City updated its urban area transportation plan to address issues of congestion citywide and to encourage other modes of transportation, such as walking, bicycling, and public transit. In conjunction with this plan, the City adopted the South Avenue Improvement Project, which contemplated the expansion of South Avenue from a two-lane rural road into a three-lane urban road with a center turn lane, bicycle lanes, curbing, and sidewalks. The question thus arose as to the width of the South Avenue right-of-way.

¶6 The portion of South Avenue between Reserve Street and the south quarter corner of Section 29 was created incrementally through four subdivision plats, each of which contains a certificate dedicating to the public the avenues, streets, and alleys depicted on the plats. These four plats were surveyed and recorded between 1904 and 1911. On the face of the plats, South Avenue appears to be 60 feet wide and centered on Section 29's south section line-i.e., a 30-foot-wide strip along the north side of the section line and a 30-foot-wide strip along the south side of the section line. The City believed, however, that the depictions on the plats might not be true to the monuments and boundary lines established in the field by the original plat surveyors. Indeed, the City believed that "irregularities" existed throughout Missoula in the widths of rights-of-way along section lines due to the manner in which subdivisions in the area had been surveyed and platted over the years. The City, therefore, hired WGM Group, Inc., an engineering, surveying, and planning firm in Missoula, to prepare a survey retracing the boundaries of the City's South Avenue right-of-way.

¶7 In contrast to an original survey, where the surveyor creates boundaries in the first instance and leaves behind evidence for a subsequent surveyor to find, a retracement seeks to ascertain the boundaries established by the original survey by means of locating and recovering on the ground the remains of the evidence left by the original surveyor. The retracing surveyor's sole function is to "trace the footsteps" of the original surveyor; he may not establish new corners or boundary lines, nor may he correct errors of the original surveyor. See Vaught v. McClymond, 116 Mont. 542, 550, 155 P.2d 612, 616 (1945); Walter G. Robillard & Donald A. Wilson, Brown's Boundary Control and Legal Principles § 10.4, 268 (6th ed., John Wiley & Sons 2009) (citing Rivers v. Lozeau, 539 So. 2d 1147, 1151 (Fla. 5th Dist. App. 1989)); see also Admin. R. M. 24.183.1101(1)(c).

¶8 Thomas McCarthy, a registered land surveyor with WGM Group, conducted the retracement of South Avenue. He examined the four aforementioned subdivision plats and then attempted to locate monuments left in the ground by the original surveyors. The first plat is the R.M. Cobban Orchard Homes plat, which O.C. Finkelnberg surveyed in 1904 and the Missoula County Commissioners examined and approved in 1905. It shows the subdivision of land in the west halves of Sections 29 and 32 into lots and streets. There are approximately 90 numbered lots and 10 streets. The plat depicts South Avenue running symmetrically over the south section line of Section 29, between the southwest section corner and the south quarter corner of that section. A dimension of "60" appears over South Avenue near the section corner, and a dimension of "30" appears in the northern strip of South Avenue near the quarter corner. McCarthy concluded that this plat dedicated to the public the shaded areas shown below in Diagram III. With respect to South Avenue, the dedication included 30 feet of right-of-way along the north side of the section line, plus 30 feet of right-of-way along part of the south side of the section line. The reason for the gaps in the south half of the dedication is that the grantors did not own those intervening tracts-i.e., the land between Lots 49 and 87, and the land east of Lot 87, as shown in Diagram III-and, thus, they could not dedicate those segments of the contemplated right-of-way. Those segments were dedicated in the subsequent plats.

DIAGRAM III (McCarthy's depiction of areas dedicated by the 1905 plat)

 section corner quarter corner SOUTH AVENUE ←

E A T O N

(this area not platted)

(this area not platted)

¶9 The second plat is the Car Line Addition plat, which Newton Orr and James H. Bonner surveyed in 1909 and the Missoula County Commissioners examined and approved that same year. An excerpt of the plat is shown here in Diagram IV.

DIAGRAM IV (excerpt of 1909 plat)

(SUSSEX) .M A R G A R E T (this area not platted) R V E C H I L L I N G C L A R K BLOCK 41 BLOCK 32 BLOCK 33 S (this area not platted) (this area not platted)

(LIVINGSTON)

The certificate of dedication on the 1909 plat states that various R.M. Cobban Orchard Homes lots have been surveyed, subdivided, and platted into lots, blocks, avenues, streets, and alleys as shown on the Car Line Addition plat. In essence, the 1909 plat further subdivides (and renumbers) most of the lots created by the 1905 plat, including those designated as Lots 46, 47, 48, 49, 50, and 87 on Diagram III. The 1909 plat also subdivides previously unplatted land on the south side of South Avenue, designated as Blocks 32 and 33 on Diagram IV. The northern strips of Blocks 32 and 33 are dedicated as part of the South Avenue right-of-way. South Avenue is labeled 60 feet wide at two points, which are circled on Diagram IV.

¶10 Following the 1909 Car Line Addition plat, two gaps remained in the southern half of the South Avenue right-of-way corresponding with the unplatted areas on either side of Block 41 (which are labeled on Diagram IV). These final segments were dedicated in the third and fourth plats: the Car Line Addition No. 3 plat and the Supplementary Addition to Car Line Addition plat, respectively. James H. Bonner surveyed these plats in 1910, and the Missoula County Commissioners approved them that same year. Their certificates of dedication are dated 1910 and 1911. Consistent with the 1909 Car Line Addition plat, the depictions and land descriptions on the two 1910 Car Line Addition plats indicate that South Avenue is 60 feet wide and centered on the section line.

¶11 In the field, McCarthy located monuments marking Section 29's southwest corner (at the Reserve Street intersection) and south quarter corner (near the Johnson Street intersection), both labeled on Diagram V below. These corners were first established and monumented by the General Land Office (GLO) in 1870. Between these two points, however, McCarthy did not find any other monuments in South Avenue associated with the R.M. Cobban Orchard Homes plat or the three Car Line plats. McCarthy explained at trial that the original subdivision surveyors were required to mark large stones with an "X" and bury them one foot underground where street centerlines intersected. Although he found no such stones in South Avenue, McCarthy did find them in neighboring streets, including Sussex Avenue and Livingston Avenue. He used those monuments and certain distances stated on the Car Line plats to deduce South Avenue's boundaries.

ΒΆ12 In this regard, the Car Line plats specify the depths of the lots along the north and south sides of South Avenue. Between South Avenue and the first parallel street to the north (Beck Avenue, later renamed Sussex Avenue), there is a strip of lots 125 feet deep, a 20-foot-wide alley, and another strip of lots 125 feet deep. Between South Avenue and the first parallel street to the south (Dorothy Avenue, later renamed Livingston Avenue), there is a strip of lots 127 feet deep, a 20-foot-wide alley, and another strip of lots 127 ...


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