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Soup Creek LLC v. Gibson

Supreme Court of Montana

March 12, 2019

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

          APPEAL 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

          For Appellants: James E. Brown, The James Brown Law Office, PLLC, Helena, Montana

          For Appellees: Burt N. Hurwitz, Church, Harris, Johnson & Williams, P.C., Great Falls, Montana Hanna Warhank, Attorney at Law, Great Falls, Montana


          Ingrid Gustafson, Justice.

         ¶1 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.

         ¶2 The issue on appeal is:

Whether the District Court erred in concluding Soup Creek Road is not a public highway.


         ¶3 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.[1] The Skelton and Gibson parcels have not been owned in common since patent from the United States.

         ¶4 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.

         ¶5 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.

         Conde Hamlin, Sapphire Hunting in Montana, Current Literature, A Magazine of Record and Review, May-Aug. 1891, at 120, 123-24.

         ¶6 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.

         ¶7 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.

         ¶8 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.

         ¶9 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."

         ¶10 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 ...

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