PUBLIC LANDS ACCESS ASSOCIATION, INC., Petitioner and Appellant,
THE BOARD OF COUNTY COMMISSIONERS OF MADISON COUNTY, STATE OF MONTANA, and C. TED COFFMAN, FRANK G. NELSON and DAVID SCHULTZ, constituting members of said Commission; and ROBERT R. ZENKER, in his capacity as the County Attorney for Madison County, State of Montana, Respondents and Appellees. JAMES C. KENNEDY, MONTANA STOCKGROWERS ASSOCIATION and HAMILTON RANCHES, INC., Respondent/Intervenor and Cross-Appellant.
Submitted: May 15, 2013
Argued: April 29, 2013
APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Madison, Cause No. DV-29-04-43 Honorable Loren Tucker, Presiding Judge
For Appellant: J. Devlan Geddes (argued), Goetz, Gallik & Baldwin, P.C.; Bozeman, Montana
For Appellees: Susan B. Swimley (argued), Attorney and Counselor at Law; Bozeman, Montana
Tara DePuy, Attorney and Counselor at Law; Livingston, Montana
For Appellee and Cross-Appellant: Colleen M. Dowdall, Worden Thane P.C.; Missoula, Montana
Peter D. Coffman (argued), Matthew T. Parrish, Dow Lohnes PLLC; Atlanta, Georgia
For Intervenor State of Montana: Timothy C. Fox, Montana Attorney General, Matthew T. Cochenour (argued), Assistant Attorney General; Helena, Montana
For Amici: Rebecca R. Swandal, Swandal, Douglass & Gilbert, P.C.; Livingston, Montana (Attorney for Property and Environment Center)
Matthew O. Clifford, Attorney at Law; Oakland, California (Attorney for Montana Council of Trout Unlimited)
Margo B. Ogburn, Wittich Law Firm, P.C.; Bozeman, Montana (Attorney for United Property Owners of Montana)
Michael E Wheat, Justice
¶1 Public Lands Access Association, Inc. (PLAA) appeals from a 2012 judgment of the Fifth Judicial District Court, Madison County, denying the public access to the Ruby River at Seyler Lane and Seyler Bridge.
¶2 James Kennedy (Kennedy) cross-appeals from a 2008 judgment of the Fifth Judicial District Court, Madison County, granting PLAA summary judgment on the issue of public access to the Ruby River from Lewis Bridge. We affirm in part, reverse in part, and remand for further proceedings.
¶3 We have consolidated the appeal and cross-appeal issues into the following issues:
1. Did the District Court correctly define the width of the public right-of-way at the intersection of Seyler Lane and the Ruby River?
2. In determining the width of the public right-of-way at the intersection of Seyler Lane and the Ruby River, did the District Court err by excluding evidence of recreational use?
3. Is the use of a public road right-of-way established by prescription limited to historic use, or does it extend to all public uses, including recreation?
4. Did the District Court err by rejecting certificates of survey (COS) as evidence of the width of the existing public right-of-way at the intersection of Seyler Lane and the Ruby River?
5. Did the District Court effectuate an unconstitutional taking of Kennedy's property when it ruled that the public may access the Ruby River via the right-of-way granted by the Lewis Lane deed?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Duncan District Road, Lewis Lane, and Seyler Lane are county roads in Madison County, Montana. All three roads cross the Ruby River by way of bridges. The bridges were constructed by, and are currently maintained by, Madison County. K ennedy owns land that abuts the public rights-of-way on both Seyler Lane and Lewis Lane.
¶5 PLAA filed a complaint against Madison County in May 2004, alleging that individuals who owned property adjacent to the three bridges had erected fences along each county road to the ends of each bridge, preventing the public from using the rights-of-way to access the Ruby River. PLAA twice amended its complaint and ultimately sought, among other things, a declaratory judgment that the public may use Duncan District Road, Lewis Lane, and Seyler Lane, and their bridges and bridge abutments, to access the Ruby River. Kennedy intervened as a defendant.
¶6 The parties moved for summary judgment, and, after holding a hearing on the matter, the District Court issued an order on October 1, 2008. T he court held, in part, that the public rights-of-way at Duncan District Road and Lewis Lane are each 60 feet wide, and the public is entitled to use the entire 60 foot width to access the Ruby River. With respect to Seyler Lane, the court determined at the hearing that, because the right-of-way was established by prescriptive use as opposed to statutory petition (Duncan District Road) or dedication or grant (Lewis Lane), additional fact finding was necessary to determine the width of the right-of-way and whether the public could use it to access the Ruby River. Summary judgment pertaining to Seyler Lane was therefore denied, and a trial was ordered to resolve the remaining issues.
¶7 The parties stipulated to the facts set forth below, through paragraph 15, prior to trial. Seyler Lane and Seyler Bridge were constructed by Madison County, but there are no records which verify the date of their original construction. M adison County re-constructed Seyler Bridge in its present location after a 1976 flood. Kennedy owns the fee title to the land underlying Seyler Bridge and the bridge approaches on Seyler Lane, including the bed and banks of the Ruby River. The Seyler Bridge surface is 24 feet wide. The area of the bridge surface between the guard rails on the bridge is 21.35 feet wide. T he paved portion of the road approaching the bridge is approximately 20 feet wide and sits atop road fill that slopes down and away from the edge of the pavement. The bottom edge of the road fill is referred to as "toe of road fill."
¶8 In June 2004, Madison County issued Kennedy an "Encroachment Permit for Fence on County Bridge Right-of-Way Madison, Montana" (the "Encroachment Permit"). Pursuant to the Encroachment Permit, Kennedy installed private fences at three of the bridge corners at Seyler Bridge. Some of the fences are located at the toe of road fill, while others are inside or outside the toe of road fill. The fences do not impede, block, or intimidate the public from reaching the Ruby River.
¶9 Madison County has assumed jurisdiction over Seyler Lane and Seyler Bridge and is responsible for maintaining them. Madison County maintains the paved surface of Seyler Lane, including the toe and shoulder, as well as the areas beyond the travelled surface and adjacent subsurface, by mowing, snow plowing, and weed spraying. Madison County also maintains the subjacent and lateral support of Seyler Bridge, including the bridge abutments, wing walls, and bridge spans.
¶10 Finally, and of particular import to this appeal, the parties agreed upon the following fact:
Seyler Bridge and its approaches on Seyler Lane is a county road right-of-way that was established by prescriptive use. There is no dispute that the public has the right to use the paved portion of Seyler Bridge and its approaches on Seyler Lane for travel across Seyler Bridge over the Ruby River.
¶11 A bench trial was held January 9-11, 2012, at which both parties presented exhibits and witness testimony. On April 16, 2012, the District Court issued its findings of fact, conclusions of law, and final judgment. We will refer to the findings and conclusions in more detail below. T he gist of the District Court's decision, however, was that PLAA failed to prove the existence of a public prescriptive easement beyond the fences at Seyler Bridge by clear and convincing evidence.
¶12 The final judgment provides:
1. Westerly and southerly of the Seyler Bridge, the public has a prescriptive right to travel and to use Seyler Lane between the fences and likewise upon the Seyler Bridge.
2. Madison County has a prescriptive right independent and separate from public use to lateral and subjacent support for Seyler Lane and Seyler Bridge, together with such additional land as is reasonable and necessary for maintenance and repair.
3. Except as described in paragraph 2 above, there is no public right whatsoever on either side of Seyler Lane outside the fences or beyond the traveled way where there is no fence.
¶13 PLAA appeals this decision, and Kennedy cross-appeals from the court's order regarding the parties' motions for summary judgment.
STANDARD OF REVIEW
¶14 We review for clear error a district court's findings of fact. Boyne USA, Inc. v. Spanish Peaks Dev., LLC, 2013 MT 1, ¶ 28, 368 Mont. 143, 292 P.3d 432. Clear error exists if substantial credible evidence fails to support the findings of fact, if the district court misapprehended the evidence's effect, or if we have a definite and firm conviction that the district court made a mistake. Spanish Peaks, ¶ 28. We review for correctness a district court's conclusions of law. Spanish Peaks, ¶ 28.
¶15 We review a district court's ruling on motions for summary judgment de novo, using the same M. R. Civ. P. 56 criteria used by the district court. Mt. West Bank, N.A. v. Cherrad, LLC, 2013 MT 99, ¶ 25, 369 Mont. 492, 301 P.3d 796.
¶16 The issues PLAA raises on appeal relate to one overarching question: May the public use the Seyler Lane right-of-way to access the Ruby River? This inquiry breaks down into two subsets of questions: What is the width of the Seyler Lane right-of-way, and may the public use the right-of-way for recreational purposes? We address these issues in turn.
¶17 Issue One: Did the District Court correctly define the width of the public right-of- way at the intersection of Seyler Lane and the Ruby River?
¶18 The parties stipulated, and the District Court found, that Seyler Bridge and its approaches on Seyler Lane is a county road right-of-way that was established by prescriptive use. Despite this finding, the court determined that the public could only use the portion of the right-of-way "between the fences and . . . upon the Seyler Bridge." It reserved use of the areas necessary for maintenance and repairs, which included lateral and subjacent support for Seyler Lane and Seyler Bridge and "such additional land as is reasonable and necessary, " exclusively for Madison County. By doing so, the District Court effectively split the public right-of-way into a narrower primary public right-of-way for travel and a wider secondary limited easement for maintenance and repairs, and explicitly excluded the public from using the County's secondary easement.
¶19 For the reasons stated below, we reverse the District Court's decision that the County has a secondary easement for purposes of construction, maintenance and repair that is separate from the public road right-of-way. In a public road right-of-way established by prescription, the areas necessary to support and maintain the road, as well as the land needed to make the road safe and convenient for public use, are included in the public right-of-way.
¶20 PLAA argues that, because Seyler Bridge and its approaches on Seyler Lane is a county road right-of-way acquired by prescriptive use, the public has obtained by prescription the right to use both the portion of the roadway actually traveled or paved and the land needed for the support and maintenance of the paved and traveled portion, including shoulders and ditches. PLAA asserts that the District Court's recognition of a secondary easement "was unnecessary and improperly limited the public's use of the rights acquired in the Seyler Lane prescriptive easement by granting a de facto private easement to the County for maintenance activities" (emphasis in original).
¶21 In support of finding that the county holds a secondary easement for repair and maintenance, the District Court relied upon the following cases: Laden v. Atkeson, 112 Mont. 302, 116 P.2d 881 (1941); Guthrie v. Hardy, 2001 MT 122, 305 Mont. 367, 28 P.3d 467; Kelly v. Wallace, 1998 MT 307, 292 Mont. 129, 972 P.2d 1117; and Ferguson v. Standley, 89 Mont. 489, 300 P. 245 (1931). Unlike the case at hand, however, these cases all involved private easements. None involved a public road.
¶22 Our seminal case on secondary easements is Laden. There, the plaintiff landowners had an easement in a ditch that ran through the defendant's land. The defendant did not contest this right, but did challenge the plaintiffs' right to enter upon the defendant's lands in order to reach the ditch and to use lands on the sides of the ditch for maintenance and repair. We ruled for the plaintiffs and recognized that " '[t]he owner of a dominant estate having an easement, has the right to enter upon the servient estate and make repairs necessary for the reasonable and convenient use of the easement, doing no unnecessary injury to the servient estate.' " Laden, 112 Mont. at 306, 116 P.2d at 884 (internal quotations omitted). Such a right is called a "secondary easement, " and is a "mere incident of the easement that passes by express or implied grant, or is acquired by prescription." Laden, 112 Mont. at 305-06, 116 P.2d at 883 (internal quotations omitted). We stated that the secondary easement "can be exercised only when necessary and in such a reasonable manner as not to needlessly increase the burden upon the servient tenement." Laden, 112 Mont. at 306, 116 P.2d at 884 (quotation omitted).
¶23 Since Laden, we have recognized secondary easement rights in a number of cases involving private ditch easements. See e.g. Shammel v. Vogl, 144 Mont. 354, 396 P.2d 103 (1964); O'Connor v. Brodie, 153 Mont. 129, 454 P.2d 920 (1969); Sharon v. Hayden, 246 Mont. 186, 803 P.2d 1083 (1990); Kephart v. Portmann, 259 Mont. 232, 855 P.2d 120 (1993); Engel v. Gampp, 2000 MT 17, 298 Mont. 116, 993 P.2d 701; Musselshell Ranch Co. v. Seidel-Joukova, 2011 MT 217, 362 Mont. 1, 261 P.3d 570. In 1981, the Montana Legislature codified secondary easement rights. Section 70-17-112, MCA, provides that an owner of a canal or ditch easement has a secondary easement to enter the servient tenement to inspect, repair, and maintain the canal or ditch.
¶24 At issue in the present case, in contrast to a private easement, is a county road acquired by prescriptive use. When a county road is established, the public acquires the right-of-way "and the incidents necessary to enjoying and maintaining it." Section 7-14-2107(3), MCA. We previously have observed that Montana statutes "clarify that a public highway consists of more than the surface of a roadway, " and is not "limited to the driving surface." DeVoe v. State, 281 Mont. 356, 369-70, 935 P.2d 256, 264 (1997). Our case law is also clear that the establishment of a public road by prescriptive use contemplates the general public's use of the roadway as well as the land needed for construction, repairs and maintenance. W e do not separate the different uses to create two distinct interests—a public road for travel and a secondary easement for the County's maintenance—as the District Court did. Rather, we recognize one public road right-of-way. See Rasmussen v. Fowler, 245 Mont. 308, 312, 800 P.2d 1053, 1056 (1990) (finding a public prescriptive road easement based upon evidence of county maintenance of the road as well as other public uses); McClurg v. Flathead County Comm'rs, 188 Mont. 20, 24, 610 P.2d 1153, 1156 (1980) (finding a public prescriptive road easement based in part upon evidence of "grading, laying gravel and other maintenance of the road"); Smith v. Russell, 2003 MT 326, ¶¶ 14-17, 21, 318 Mont. 336, 80 P.3d 431 (finding that the public's use of a road coupled with Toole County's maintenance of the road established a public highway); Hitshew v. Butte/Silver Bow Co., 1999 MT 26, ¶ 18, 293 Mont. 212, 974 P.2d 650 ("[T]he public's use coupled with a county government's regular maintenance of a roadway without the landowner's permission is evidence of adverse use."); Swandal Ranch Co. v. Hunt, 276 Mont. 229, 235-36, 915 P.2d 840 (1996) (determining that evidence of regular county road maintenance supported the element of adversity in a claim to a public prescriptive road easement); PLAA v. Jones, 2004 MT 394, ¶ 33, 325 Mont. 236, 104 P.3d 496 (finding a public prescriptive road easement based upon evidence of public use, including recreational use, and Teton County's periodic maintenance of the road).
¶25 This approach is consistent with the general rule that the width of a public prescriptive roadway extends beyond the traveled portion of the road to include areas necessary for its support and maintenance. See e.g., McKenzie Co. v. Reichman, 812 N.W.2d 332, 344 (N.D. 2012) ("The width of a prescriptive road must be determined by actual use over the prescriptive period and may include shoulders and ditches needed to support and maintain the traveled portion of the road."); Nikiel v. Buffalo, 7 Misc.2d 667, 670 (N.Y. Sup. 1957) ("[T]he width and extent of a highway established by prescription or use . . . is not necessarily limited to the beaten path or traveled tract. It carries with it . . . such width as is reasonably necessary for the safety and convenience of the traveling public and for ordinary repairs and improvements. A highway established by user includes the traveled tract and whatever land is necessarily used or is incidental thereto for highway purposes."); Yturria Town & Improv. Co. v. Hidalgo Co., 125 S.W.2d 1092, 1094 (Tex. App. 1939) ("When a road is established by prescription, the right is not limited to the beaten path used, but may be made to include sufficient land for drainage ditches, repairs and the convenience of the traveling public."); Keidel v. Rask, 290 N.W.2d 255, 258 (N.D. 1980) ("The width of a prescriptive public road established in the absence of a law specifying its width . . . necessarily includes not only the actual traveled surface area of the roadway, but also any adjacent land which is needed for the prescription to be maintained as a public road, including any land reasonably necessary for ditches, shoulders, and slopes."); Teadtke v. Havranek, 777 N.W.2d 810, 820 (Neb. 2010) ("If the public has acquired the right to a highway by prescription, it is not limited in width to the actual beaten path, but the right extends to such width as is reasonably necessary for public travel."); Campbell v. Covington Co., 137 So. 111 (Miss. 1931) (In a highway established by prescription, "the public are not limited to the actual width used by them –the beaten path. T he prescriptive right carries with it the beaten path and whatever is necessary to make the beaten path a usable highway . . . ."); see also Jon W. Bruce and James W. Ely, Jr., The Law of Easements and Licenses in Land § 7:12, 7-29 (Thomson Reuters 2013) ("In the case of a prescriptive roadway, particularly one acquired by the public, the width may extend beyond the paved or packed road surface to include areas used for cars to pass each other, for drainage ditches, and for shoulders.").
¶26 We agree with these authorities and hold that the concept of a limited secondary easement does not apply to determine the width of a public road right-of-way established by prescriptive use. Here, the parties stipulated that there is a county road right-of-way established by prescriptive use at Seyler Lane and Seyler Bridge. The issue is thus not whether a public road right-of-way exists, but rather the width of that already existing right-of-way. Pursuant to the above discussion, we determine the Seyler Lane public right-of-way is not confined to the portion of the road actually traveled. Instead, its width extends beyond the traveled way and includes whatever land is reasonably necessary to support and maintain the road and for the road to be safely and conveniently used.
Width of Seyler Lane right-of-way
¶27 The District Court did not establish a definite width for the County's secondary easement. Instead, it defined the easement by reference to "the lateral and subjacent support for Seyler Lane and Seyler Bridge" and to "such additional land as is reasonable and necessary for maintenance and repair." Because we reverse the District Court's conclusion that the County holds a separate secondary easement, we remand to determine the width of the single public road right-of-way. That determination must be made in accordance with the guidelines set forth in this opinion.
¶28 We begin with the well-recognized principle that the minimum 60-foot road width required by § 7-14-2112(1), MCA, does not apply to roads established by prescriptive use. Wohl v. City of Missoula, 2013 MT 46, ¶ 42, 369 Mont. 108, 300 P.3d 1119; State v. Portmann, 149 Mont. 91, 98, 423 P.2d 56, 56 (1967). Rather, the width of a roadway acquired by prescription is "determined as a question of fact by the character and extent of its use and may be more or less than the width of highways established by statute." Portmann, 149 Mont. at 95, 423 P.2d at 58 (citing State ex rel. Game, Forestation and Parks Commn. v. Hull, 97 N.W.2d 535 (Neb. 1959)) (also citing Descheemaeker v. Anderson, 131 Mont. 322, 326, 310 P.2d 587, 589 (1957) ("the public may obtain title by adverse possession of that only which it has occupied during the full statutory period.")). See also Lovvorn v. Salisbury, 701 P.2d 142, 144 (Colo.App. 1985) (width of public road established by prescriptive use is to be made by reference to the width established by the use). Therefore, the District Court must consider, in addition to the land necessary to support and maintain the road, historical evidence of the nature of the enjoyment by which the public acquired the right-of-way. Section 70-17-106, MCA.
¶29 A bridge is a part of the public road upon which it is built. Section 60-1-103(22), MCA; State ex rel. Furnish v. Mullendore, 53 Mont. 109, 113-15, 161 P. 949, 951-52 (1916) ("a bridge is part and parcel of the highway upon which it is built. . . . If the highways belong to the public, it must follow that anything permanently affixed to them, either in the way of repairs or in the form of completed structures, such as bridges and the like, become a part of them, and as much of public right as the highways themselves."); State ex rel. Foster v. Ritch, 49 Mont. 155, 156-57, 140 P. 731, 731 (1914) ("A bridge is to be treated as but a portion of a public highway.") A bridge includes "all appurtenances, additions, alterations, improvements and replacements and the approaches to the bridge, lands used in connection with the bridge, and improvements incident or integral to the bridge." Section 60-1-103(2), MCA. This statute makes clear that Seyler Bridge, including its appurtenances, additions, alterations, improvements and replacements and the approaches to the bridge, lands used in connection with the bridge, and improvements incident or integral to the bridge, is part of the Seyler Lane county road right-of-way. This public road right-of-way must be considered along with evidence of the public's use in determining width.
¶30 Like the Seyler Lane roadway, which requires areas beyond the traveled surface for its support and maintenance, Seyler Bridge's upkeep necessitates use of adjacent land. Madison County maintains the subjacent and lateral support for Seyler Bridge. Bridge inspectors Daniel Gravage and Shane Escott testified that access to the Ruby River for purposes of performing essential bridge inspections requires use of neighboring land. Consistent with §§ 60-1-103(2) and 7-14-2107(3), MCA, the District Court should consider the land used for support and maintenance of the bridge in determining the width of the public's right-of-way. T he width of a county road or bridge acquired by prescription must be sufficient to encompass the incidents necessary to enjoying, supporting and maintaining the roadway.
¶31 This analysis regarding the width of the right-of-way is consistent with the Encroachment Permit Madison County issued to Kennedy in 2004. The Encroachment Permit allowed Kennedy to construct and maintain "a fence on the county bridge right-of-way for the purpose of keeping livestock off the county road[.]" K ennedy installed the fences at Seyler Bridge pursuant to this permit. The right-of-way's boundaries are not defined by Kennedy's fences that narrow at the bridge; rather, the fences cut through the public road right-of-way.
¶32 In sum, we reverse the District Court's determination that the County holds a secondary easement that is independent of the public's right-of-way. We remand for the court to consider the evidence in the record, and conduct whatever additional proceedings it deems necessary, to establish a definite width of the single, unified, public road right-of-way at Seyler Lane.
¶33 Issue Two: In determining the width of the public right-of-way at the intersection of Seyler Lane and the Ruby River, did the District Court err by excluding evidence of recreational use?
¶34 PLAA argues that the District Court erred by excluding evidence of historical recreational use by the public in determining the width of the public road right-of-way at Seyler Bridge. During the trial, the court determined there was no "basis to utilize recreational use for purposes of establishing a prescriptive right" and, accordingly, prohibited PLAA from presenting evidence of recreational use of the Seyler Lane right-of-way. Following trial, PLAA submitted an offer of proof regarding recreational use at Seyler Bridge. The court subsequently issued its Findings of Fact and Conclusions of Law, concluding that "[r]ecreational use is insufficient to establish a prescriptive easement."
¶35 This Court has held that " '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 [prescriptive] use.' " Leisz v. Avista Corp., 2007 MT 347, ¶ 37, 340 Mont. 294, 174 P.3d 481 (brackets in original) (quoting McCauley v. Thompson-Nistler, 2000 MT 215, ¶ 38, 301 Mont. 81, 10 P.3d 794). We have not, however, held that recreational use may never be considered. See e.g. Brown & Brown of MT, Inc. v. Raty, 2012 MT 264, ¶ 34, 367 Mont. 67, 289 P.3d 156 (concluding that "the undisputed evidence establishes that residential and recreational uses were within the scope of the prescriptive easement"); Schmid v. Pastor, 2009 MT 280, ¶ 21, 352 Mont. 178, 216 P.3d 192 (finding recreational use sufficient to give notice to the servient owner of an adverse claim to support a narrow prescriptive ...