SOUP CREEK LLC, DEWEY and ROSANA SKELTON, Plaintiffs and Appellees,
PATRICIA GIBSON, RICHIE GIBSON, and DON GIBSON, Defendants and Appellants.
Submitted on Briefs: December 5, 2018
FROM: District Court of the First Judicial District, In and
For the County of Lewis and Clark, Cause No. CDV 09-654
Honorable Kathy Seeley, Presiding Judge
Appellants: James E. Brown, The James Brown Law Office, PLLC,
Appellees: Burt N. Hurwitz, Church, Harris, Johnson &
Williams, P.C., Great Falls, Montana Hanna Warhank, Attorney
at Law, Great Falls, Montana
Defendants Patricia Gibson, Richie Gibson, and Don Gibson
(Gibsons) appeal from the Findings of Fact, Conclusions of
Law and Order dated March 15, 2018, in the First Judicial
District Court, Lewis and Clark County, which concluded Soup
Creek Road was an extinguished prescriptive easement across
the parcel of land owned by Plaintiffs Soup Creek, LLC, Dewey
Skelton, and Rosana Skelton (Skeltons). We reverse and remand
for entry of judgment consistent with this Opinion.
The issue on appeal is:
Whether the District Court erred in concluding Soup Creek
Road is not a public highway.
AND PROCEDURAL BACKGROUND
Soup Creek Road begins at Nelson Road, a county road in Lewis
and Clark County, and traverses approximately three miles
across Bureau of Land Management (BLM) property administered
by the U.S. Forest Service and other private lands before
crossing into and through Skeltons' Lot 7 to the Gibson
parcel. Soup Creek Road ends at the Gibson parcel, and is the
only road access to it. The Skelton and Gibson parcels have not
been owned in common since patent from the United States.
Soup Creek Road has been used as a public travel way for more
than 150 years. The earliest record of Soup Creek Road is a
U.S. Township Survey from 1868 depicting the road in
approximately the same location as the road is situated
today. By 1869 the road was used for accessing ferries that
carried members of the public across the Missouri River, for
mining sapphires and gold, and for accessing homestead and
landowner property. Since then, Soup Creek Road has continued
to be depicted and referenced in various surveys and public
records and to be used by the public and others-in recent
decades, primarily by persons accessing the Gibson parcel.
There was evidence and documentation from the 1880s of a
reservoir and ditch over Soup Creek going to the Eldorado
Bar. In 1891, an article was published about sapphire hunting
outside of Helena, in which a wagon drawn by two
"sleepy-looking broncos" took the author via Soup
Creek Road out to Eldorado Bar, "one of the most famous
bars in Montana," describing the trip as follows:
The down grade was through Soup Creek Canyon, with its
succession of magnificent views of wooded cliffs and denuded
strata that tell, in fantastic undulations, the story of
earth's changes. Sections of the ill-fated flume still
cling to the precipitous sides, and far down the canyon
timbers belonging to the shattered trestle and which are
rotting gradually away are passed. The canyon opens on the
Missouri River as clear and as blue as the sky itself. The
road turns to the right, and great rows of wild-rose bushes
stand like guards along its sides. In June the pedestrian
must walk through a veritable arbor of pink and perfume, for
the lofty tops brush the wagon seats as it passes. . . . A
ride of a few more miles has its ending at the Eldorado Bar,
where a hut or two tell of their occupants in the sixties. .
. . It would evidently not be an enormous task to reconstruct
the flume of the sixties and work out this great bar of 1,
600 acres with its rich deposits of gold and gems.
Hamlin, Sapphire Hunting in Montana, Current
Literature, A Magazine of Record and Review, May-Aug. 1891,
at 120, 123-24.
In 1894 the Meagher County Commissioners were petitioned to
make Soup Creek Road a county road. The petition was rejected
in 1895 when the commissioners adopted a different route.
Shortly thereafter, the portion of Meagher County that had
included Soup Creek Canyon became part of Lewis and Clark
County; the entirety of Soup Creek Road is now situated in
Lewis and Clark County.
Soup Creek Road is continually referenced in Lewis and Clark
County records but is not included as a county road on its
index of county roads. Soup Creek Road is mentioned in a 1907
petition to the Lewis and Clark County Commission which
sought approval to extend the then-existing road around Soup
Creek Bay to the Trout Creek bridge. The Commission declined
to approve the proposed extension.
In June 1910, M.S. Gunn, Gibsons'
predecessor-in-interest, petitioned the Lewis and Clark
County Commissioners to abandon only that portion of Soup
Creek Road that crosses over what is now the Gibson parcel.
The petition was granted.
The 1913 BLM survey includes Soup Creek Road. Another survey,
accepted by the Surveyor General in 1914, which had been
conducted in 1906 for the Government Land Office (GLO) (now
the Department of Interior which includes the BLM) shows Soup
Creek Road running from York Road to the Missouri River over
what is now Skeltons' Lot 7 and the Gibson parcel. In
Homestead Entry Surveys 177 and 489, completed in 1914 and
1915 respectively, the U.S. Forest Service platted Soup Creek
Road, calling it a "road right of way" and a
"right of way."
In 1917, Mayo, a predecessor-in-interest to Skeltons, was
issued a government patent for Lot 7, now owned by Skeltons.
The patent was issued with reference to GLO Survey No. 489.
Survey 489 depicts Tracts A and B with a remainder strip
running down the middle between these two tracts to Lot 7. In
1918, Worley, also a predecessor-in-interest to Skeltons, was
granted a patent for Tracts A and B, which are also now owned
by Skeltons. The ...