Public Lands Access Ass'n v. Board of County Commissioners , 373 Mont. 277 ( 2014 )

January 16 2014
DA 12-0312
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 10
PUBLIC LANDS ACCESS ASSOCIATION, INC.,
Petitioner and Appellant,
v.
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.
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
COUNSEL OF RECORD:
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)
Argued: April 29, 2013
Submitted: May 15, 2013
Decided: January 15, 2014
Filed:
__________________________________________
Clerk
2
Justice Michael E Wheat delivered the Opinion of the Court.
¶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
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were constructed by, and are currently maintained by, Madison County. Kennedy 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.1
¶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. The 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.
1
The Montana Stockgrowers Association and Hamilton Ranches also intervened as
defendants, but have since stipulated to being dismissed from the case.
4
¶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. Madison 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. The 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.
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¶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. The 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
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¶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.
DISCUSSION
¶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,”
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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.
Secondary Easements
¶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.
8
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
9
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. We 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
10
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
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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. The 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
12
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,
13
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
14
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. The 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[.]” Kennedy 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
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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 easement for recreational, but not residential, purposes); PLAA v.
Jones, 2004 MT 394, ¶ 33, 325 Mont. 236, 104 P.3d 496 (considering recreational use
among other factors establishing prescriptive use of road).
¶36 We conclude that the trial court’s blanket exclusion of recreational use evidence was
improper. Recreational use may be one factor in “the nature of the enjoyment” by which the
public road right-of-way was acquired by prescriptive use and, thus, may be considered in
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determining the width of the public road right-of-way. Further, in assessing the nature of
such recreational use, we have recognized that implied acquiescence does not amount to
permission, to defeat a showing of adverse use. Brown & Brown of MT, Inc., ¶ 26. In
Lunceford v. Trenk, 163 Mont. 504, 518 P.2d 266 (1974), we affirmed a judgment finding a
prescriptive easement and declaring a public roadway, rejecting the argument that the use
was permissive. We followed long-established law that, to prove the existence of a public
road by prescription, “it must be shown that the public followed a definite course
continuously and uninterruptedly for the prescribed statutory period together with an
assumption of control adverse to the owner.” Lunceford, 163 Mont. at 508, 518 P.2d at 268.
We noted that “[the] testimony indicated that the use was not permissive, that no request for
permission to use the road was asked nor given to a vast majority of the users. Plaintiffs
assumed they had a right to use the road and used it.” Lunceford, 163 Mont. at 509, 518 P.2d
at 268. “Our case law has long recognized that ‘[c]ontinuous use’ does not mean constant
use; rather, if the claimant used the property in dispute whenever he desired, without
interference by the owner of the servient estate, the use was continuous and uninterrupted.”
Brown & Brown of MT Inc., ¶ 34 (citations omitted).
¶37 On remand, the plaintiffs are entitled to present evidence of recreational use to inform
the District Court’s determination of the width of the public right-of-way. As PLAA
recognized during trial, that evidence will have to be confined to use pre-dating the 1985
statute that prohibits acquiring a prescriptive easement through “the entering or crossing of
private property to reach surface waters.” Section 23-2-322(2)(b), MCA.
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¶38 Accordingly, we remand for the District Court to consider the evidence in the record,
and conduct whatever additional proceedings it deems necessary, to establish a definite
width of the public road right-of-way at Seyler Bridge. The District Court should consider
the lands used in connection with the bridge (§ 60-1-103(2), MCA); “the incidents necessary
to enjoying and maintaining it” (§ 7-14-2107(3), MCA); and historical evidence of the
“nature of the enjoyment by which it was acquired” (§ 70-17-106, MCA), including evidence
of recreational use. Any recreational uses by the public beyond the width necessary for the
construction, maintenance and repair of the roadway and the bridge would have to be
established through clear and convincing evidence for the requisite statutory period. See
Brown & Brown of MT, Inc., ¶ 19; Portmann, 149 Mont. at 95-96, 423 P.2d at 58.
¶39 Issue Three: 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?
¶40 The essential dispute here is whether the public can access the Ruby River from
Seyler Lane for recreational purposes—specifically, whether the public can travel from
Seyler Lane down to the high water mark of the river. The District Court determined it could
not. The court’s holding was based on its finding that PLAA failed to submit sufficient
evidence of adverse public use to establish a prescriptive easement over the land between the
fences that abut Seyler Bridge and the high water mark of the Ruby River; and on its
conclusion that usage of a prescriptive road is limited to the original use during the
prescriptive period.
¶41 The District Court did recognize a prescriptive right for the County to use any land
needed for maintenance and repair, but determined that such land is not available for public
18
use. The court concluded that “County maintenance does not show usage by the public at
large for purposes of public travel over areas utilized for maintenance of the road and
bridge,” and that “[t]here is a distinction between the right of the government to maintain the
roadway bridge and the right of the public to travel everywhere maintenance activity is
undertaken.” Finally, the court determined that the “County prescriptive right to use
maintenance areas cannot be transformed into a new traveled way.”
¶42 We have reversed the District Court’s conclusion that the areas needed for
maintenance and repairs are not a part of the public right-of-way. We must now consider
whether PLAA is required to show that particular areas within the public road right-of-way
have been used adversely to access the Ruby River in order for the public to now use them as
such. We determine it is not. Once a public road is established by prescriptive use, the use
of that road is not limited to the adverse usage through which the road was acquired.
¶43 Section 70-17-106, MCA, provides that “[t]he extent of a servitude is determined by
the terms of the grant or the nature of the enjoyment by which it was acquired.” We have
applied this statute in many cases involving private prescriptive easements and determined
that it “limits owners of a prescriptive easement to the use that was established during the
prescriptive period.” Kelly v. Wallace, 1998 MT 307, ¶ 31, 292 Mont. 129, 972 P.2d 1117.
However, in cases in which we have found that a public prescriptive road has been
established, we have not held that the scope of use was limited to the historic use through
which the road was acquired. See e.g. Swandal Ranch Co., 276 Mont. 229, 915 P.2d 840;
Granite Co. v. Komberec, 245 Mont. 252, 800 P.2d 166 (1990) (overruled on other grounds
by Warnack v. Coneen Family Trust, 266 Mont. 203, 879 P.2d 715 (1994)); Johnson v.
19
McMillan, 238 Mont. 393, 778 P.2d 395 (1989) (overruled on other grounds by Warnack,
266 Mont. 203, 879 P.2d 715); McClurg, 188 Mont. 20, 610 P.2d 1153; Hitshew v.
Butte/Silver Bow Co., 1999 MT 26, 293 Mont. 212, 974 P.2d 650; Clark v. Heirs & Devisees
of Dwyer, 2007 MT 237, 339 Mont. 197, 170 P.3d 927; Jones, 2004 MT 394, 325 Mont. 236,
104 P.3d 496.
¶44 The District Court’s conclusion that use of a prescriptive road is limited to the original
use during the prescriptive period relied upon a 2000 Attorney General Opinion (AG
Opinion) and State v. Portmann, 149 Mont. 91, 423 P.2d 56 (1967). The AG Opinion
provides that “for county roads and bridges established by prescription, their use as access to
waters is dependent upon their width and use during the prescriptive period,” and cites to
Kelly and Portmann for support. 48 Op. Att’y Gen. no. 13, § III(c) (2000). Notably, Kelly
involved a private easement, and Portmann is not on point.
¶45 In Portmann, we held that “the rights acquired by adverse use can never exceed the
greatest use of the land for the full prescriptive period.” Portmann, 149 Mont. at 96, 423
P.2d at 58. However, at issue in Portmann was not the scope of use of an easement, but
rather the width of the easement. The Court did not examine the scope of permitted uses
within the prescriptive roadway. Portmann thus does not stand for the proposition that the
scope of use of a public prescriptive road is limited to historical adverse usage through which
the road was acquired. Rather, as discussed above, it supports our conclusion that public
uses should be considered in determining the width of the public road right-of-way.
¶46 Our review of case law from other jurisdictions reveals that the scope of use for public
prescriptive easements generally is not construed as strictly as the scope of use for private
20
prescriptive easements. “Numerous authorities hold that the scope of public prescriptive
easements is broad enough to include reasonably foreseeable public uses.” Bruce & Ely,
Law of Easements and Licenses in Land § 8:12, 8-42.
¶47 In Lovvorn, 701 P.2d at 144, the Colorado Court of Appeals determined that a public
prescriptive easement created through historical vehicular travel could also be used to trail
cattle. The court reasoned:
The ultimate distinction between a public road and a private easement,
however acquired, is that the private easement can be, and is, limited to
specific individuals and/or specific uses while a public road is open to all
members of the public for any uses consistent with the dimensions, type of
surface, and location of the roadway. There is no logical way to advise the
members of the public as to which portions of the public roads they travel are
subject to specific historic uses, much less to enforce the use of the roads for
only those limited purposes. Thus, we conclude that once a road has been
declared to be public, all uses that are permissible to the public under the laws
of this state are permissible uses.
(Emphasis original). In Boykin v. Carbon Co. Bd. Of Comm’rs, 124 P.3d 677 (Wyo. 2005),
the Wyoming Supreme Court adopted the same rule, and held that the restrictive use
principle applicable between private parties did not apply to claims for the establishment of
public highway right-of-ways. The court adopted the district court’s reasoning:
The use of a public highway right-of-way cannot be limited to historical uses
as may be the case for private claimants of particular prescriptive easements.
To rule otherwise would take us down a road we should fear to travel. . . . The
use of the road may well increase in the future, and the method of such
increased use cannot be foreseen. Such is the nature of a public highway
right-of-way. To rule otherwise would defeat the very nature of a public road
system.
Boykin, 124 P.3d at 686-87 (citing Heath v. Parker, 30 P.3d 746, 750 (Colo. 2001)).
21
¶48 Many other jurisdictions have similarly distinguished the scope of use of public
prescriptive easements from that of private prescriptive easements. In Bentel v. Co. of
Bannock, 656 P.2d 1383 (Idaho 1983), the Idaho Supreme Court found that the general rule
that prescriptive easements are limited to the actual use which gave rise to the easement
applies to private, not public, prescriptive easements. The Court recognized that “[i]n more
contemporary decisions, other jurisdictions have held the scope of such [public prescriptive]
easements comprehensive enough to include reasonably foreseeable public uses of such
roadways . . . .” Bentel, 656 P.2d at 1386. The court held that a highway easement acquired
by prescription was no less comprehensive than one acquired by grant, dedication or
condemnation. Bentel, 656 P.2d at 1386. See also Pickett v. Cal. Pac. Utils., 619 P.2d 325,
327 (Utah 1980) (adopting a rule that “the easement in a public highway, which the public
acquires, includes every reasonable means for the transmission of intelligence, the
conveyance of persons, and the transportation of commodities, which the advance of
civilization may render suitable for a highway.”); Trigg v. Allemand, 619 P.2d 573, 578
(N.M.App. 1980) (“Once a road is found to be open to the public and free and common to all
citizens, they should be open for all uses reasonably foreseeable.”); Westlake v. Duncan,
Dieckman & Duncan Min. Co., 307 S.W.2d 220, 222 (Ark. 1957) (“[I]n case of a private
easement, as contrasted with a public highway, it is not permissible to impose a burden
which is greater than the use which brought the private easement into existence. We do not
find, however, that the same rule has been applied to a public highway acquired by
prescription.”).
22
¶49 In Montana, although we have not yet explicitly addressed the scope of use of public
roads acquired by prescription, we have discussed our expansive interpretation of the uses of
public highways in general. In Kipp v. Davis-Daly Copper Co., 41 Mont. 509, 516, 518, 110
P. 237, 240 (1910), the Court recognized that highways may be used “in any manner or for
any purpose which is reasonably incident[al] to the appropriation of them to public travel”
and “for all uses to which [they] might reasonably be put in view of improved methods and
the increasing needs of the public . . . .” We explained that “a highway is created for the use
of the public, not only in view of its necessities and requirements as they exist, but also in
view of the constantly changing modes and conditions of travel and transportation . . . .”
Kipp, 41 Mont. at 517, 110 P. at 240.
¶50 In Bolinger, we observed the following regarding a public prescriptive easement:
[T]he easement is not limited to the particular methods of use in vogue when
the easement was acquired, but includes all new and improved methods, the
utility and general convenience of which may afterwards be discovered and
developed in aid of the general purpose for which highways are designed.
. . .
Where land is conveyed for a public highway the implication must be that it
will be used as the convenience and welfare of the public may demand,
although that demand may be augmented by the increase of population.
. . .
[T]he dedicator is presumed to have intended the property to be used in such a
way by the public as will be most convenient and comfortable and according
to not only the properties and usages known at the time of dedication, but also
to those justified by lapse of time and change of conditions.
Bolinger, 158 Mont. at 514, 520-21, 493 P.2d at 1065-66, 1069 (quoting Cater v.
Northwestern Tel. Exch. Co., 63 N.W. 111, 112 (Minn. 1895); Collop v. United R.R.s of San
23
Francisco, 228 P. 59, 61 (Cal. App. 1924); Wattson v. Eldridge, 278 P. 236, 238 (Cal.
1929)).
¶51 When a public roadway is acquired through prescriptive use instead of a grant or
dedication, the same issue pertaining to usage arises: Should public use of that easement be
limited to the usage that existed at the time the easement was established, or, rather, should
usage accommodate the passage of time and the public’s ongoing needs? Just as the Court
has determined that the uses of a dedicated public highway change over time, so do the uses
of a public roadway acquired by prescription. Pursuant to the above discussion, we
determine the scope of a public road right-of-way established by prescriptive use is not
strictly limited to the adverse usage through which the easement was acquired, as it is in the
case of private prescriptive easements. The scope includes public uses that are reasonably
incident to the uses through which the easement was acquired and uses that are reasonably
foreseeable. Hence, once a public prescriptive road is established, the fact that a certain
public use was not adverse does not mean that the use is not permitted.
¶52 In the case before us, the District Court determined that the public could not travel on
the land between the fences at Seyler Bridge and the high water mark of the Ruby River.
The use of the Seyler Lane right-of-way as access to the Ruby River is not dependent upon
whether this use was established adversely during the prescriptive period. Foot travel over a
roadway is, and has always been, a foreseeable use of the road surface as well as any
shoulders, embankments and abutments supporting the roadway. Separate from the question
of width, use of the road for access to the Ruby River is a reasonably foreseeable use of a
public road right-of-way that crosses a river.
24
¶53 Issue Four: 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?
¶54 PLAA maintains that the District Court erred by disregarding the COS presented by
PLAA at trial and incorrectly concluded such surveys, as a matter of law, could not establish
the existence of a prescriptive easement. The District Court did not determine that the
certificates were inadmissible, nor did the court conclude that COS can never prove the
existence of an easement. Rather, the court found that the specific surveys PLAA presented
did not provide information on the dimensions of the Seyler Lane right-of-way.
¶55 Because we are remanding for the District Court to determine the width of the public
road right-of-way and instructing the court to conduct whatever additional fact-finding it
deems appropriate, it is not necessary for us to further address this issue at this time. This
Opinion in no way precludes PLAA from presenting to the court on remand any COS that
provide information regarding the dimensions of the right-of-way at issue.
¶56 Issue Five: 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?
¶57 Kennedy cross-appeals the District Court’s grant of summary judgment to PLAA on
the issue of public access at Lewis Lane. In its 2008 order, the District Court determined
that the public could use the 60-foot-wide right-of-way at Lewis Lane and Lewis Bridge to
reach the Ruby River. Kennedy maintains that the court erred for two reasons. First, he
argues that the Lewis Lane right-of-way was never intended to be used for access to the
Ruby River for fishing, hunting, wading, and boating. Second, Kennedy asserts that the
District Court’s conclusion that the public may access the Ruby River where Lewis Lane
25
crosses the Ruby River constitutes an unconstitutional taking of his property because he
owns the riverbed underlying the public right-of-way.
¶58 We reject Kennedy’s contentions. The District Court did not err, or effectuate a
taking, when it ruled the public may access the Ruby River via the right-of-way the County
purchased in the Lewis Lane deed. Kennedy’s predecessor in interest expressly granted a
public right-of-way without limiting its uses. Further, it is well-settled in Montana that the
public may use the beds of non-navigable rivers for recreation without effectuating a taking.
¶59 We agree with the District Court that Kennedy’s contention that the 60-foot-wide
right-of-way his predecessor in interest granted cannot be used for river access must fail.
Deeds granting a “right-of-way” have, in some cases, been construed as granting a fee
interest in land.2 Bruce & Ely, Law of Easements and Licenses in Land § 1:22, 1-57, n. 3.
Express language in a deed granting a “right-of-way” may, alternately, be considered to
create an express easement. Bruce & Ely, Law of Easements and Licenses in Land § 1:24, 1-
60 to 1-62; see Kenneally v. Clark, 2011 U.S. Dist. LEXIS 122357, 9-10 (D. Mont. Sept. 21,
2011) (discussing rules about defining express easements). Generally, a public easement
described in a deed will be upheld as long as the deed’s language sufficiently locates the
easement. State by Mont. State Fish & Game Comm’n v. Cronin, 179 Mont. 481, 486, 587
P.2d 395, 399 (1978). The language is construed in accordance with the clear intent of the
parties. Cronin, 179 Mont. at 486, 587 P.2d at 399. In Bolinger, we explained:
2
It should be noted that in Montana there is a rebuttable presumption that the owner
of land bounded by a road or street takes title to the middle of the road, unless a different
intent appears from the deed. McPherson v. Monegan, 120 Mont. 454, 458-59, 187 P.2d
542, 544 (1947).
26
Whether or not a particular use amounts to a diversion from that for which the
dedication was made depends on the circumstances of the dedication and the
intention of the party making it. It has been held that such use is authorized as
is fairly within the terms of the dedication and reasonably serves to fit the
property for enjoyment by the public in the manner contemplated. In other
words, the dedicator is presumed to have intended the property to be used in
such way by the public as will be most convenient and comfortable and
according to not only the properties and usages known at the time of the
dedication, but also to those justified by lapse of times and change of
conditions.
Bolinger, 158 Mont. at 521, 493 P.2d at 1069 (quoting Wattson, 278 P. at 238).
¶60 Kennedy has failed to demonstrate that his predecessor did not intend to authorize
access to the Ruby River from Lewis Lane for public fishing, wading, hunting or other uses.
Assuming arguendo that the interest Kennedy’s predecessor granted in the deed to Lewis
Lane was not a fee interest, the deed still permits the uses Kennedy contests. The deed
dedicated a 60-foot-wide right-of-way for Lewis Lane, including Lewis Bridge and the land
and water underlying it, as a County road. The deed expressly stated that the land was to be
used as a “public highway” and if it should be abandoned from that use, would revert to the
grantor and his heirs and assigns. Thus, the deed’s express terms dedicated the right-of-way
for public use. It did not restrict the public from any use on that stretch of the road. Since
this grant created a public right-of-way, we presume that Kennedy’s predecessor intended to
provide for not only those public uses known at the time, but those justified by lapse of time
and change of conditions. These include convenient and comfortable public uses, including
access to the Ruby River. We therefore agree with the District Court that the public may
use this right-of-way to access and enter the river. We also agree with the District Court’s
27
reasoning that “where a county road intersects state waters, the portion of each which is
congruent with the other creates two over lapping public rights of way.”
¶61 Kennedy’s takings argument is unpersuasive because Kennedy has no compensable
property interest in the property he claims has been taken from him. Kennedy contends that,
as owner of the streambed underlying the non-navigable Ruby River, he has the right to
control access to the waters above, including the right to exclude persons from wading into
the river or floating on the water. He maintains that declaring a public easement between the
high water marks of the Ruby River at Lewis Lane amounts to an unconstitutional taking of
his private property without due process and just compensation. In making this claim,
Kennedy argues our Stream Access Law is unconstitutional and challenges our decisions in
Mont. Coalition for Stream Access v. Curran, 210 Mont. 38, 682 P.2d 163 (1984), and Mont.
Coalition for Stream Access v. Hildreth, 211 Mont. 29, 684 P.2d 1088 (1984).
¶62 Kennedy’s argument fails for two reasons. First, when Kennedy’s predecessor in
interest deeded Lewis Lane road to the County, he also granted the swath of riverbed
underlying the bridge and within the right-of-way to the public. Kennedy’s predecessor did
not exclude the land underlying the bridge from the deed conveying the right-of-way. The
public retains the right to use this bought-and-paid-for right-of-way. Kennedy has no right to
complain that the public is using the right-of-way the County purchased from Kennedy’s
predecessor. Yet, even if Kennedy’s predecessor had not expressly granted a right-of-way to
the County for use by the public, it is settled law in Montana that the public may use the beds
of non-navigable rivers, up to the high water mark, for recreation. See §§ 23-2-301 to 21-2-
322, MCA; Curran, 210 Mont. at 53, 682 P.2d at 171; Hildreth, 211 Mont. at 35-36, 684
28
P.2d at 1091; Galt v. State, 225 Mont. 142, 148, 731 P.2d 912, 916 (1987). Our precedent
makes manifestly clear that this public use does not constitute a compensable taking of
private property: No title passes with the use right.
¶63 In Montana, waters within the state are State property held in trust for the people.
Mont. Const. art. IX, § 3(3). Kennedy’s reliance on Ill. C. R. Co. v. Ill., 146 U.S. 387, 13 S.
Ct. 110 (1892) (henceforth, “Illinois Central”), U.S. v. Causby, 328 U.S. 256, 66 S. Ct 1062
(1946) and Kaiser Aetna v. U.S., 444 U.S. 164, 100 S. Ct. 383 (1979), to assert he may
control use of the water overlying the section of riverbed he owns, is misplaced. We have
already explained that our Constitution, statutes and precedent preclude a riparian landowner
from excluding public use of a streambed.
¶64 Kennedy misconstrues Illinois Central to assert that his ownership of the streambed
also gives him ownership of the water. The dicta from Illinois Central, to which Kennedy
cites, operate to illustrate the difference between the State’s “ownership” of submerged lands
and the State’s ownership of public lands it could sell. Illinois Central, 146 U.S. at 452, 13
S. Ct. at 118 (“[The State’s] title [to the beds of Lake Michigan] necessarily carries with it
control over the waters above them . . . . But it is a title different in character from that
which the State holds in lands intended for sale.”). The key distinction, the U.S. Supreme
Court pointed out, was that the State’s ownership of submerged lands “is a title held in trust
for the people of the State that they may enjoy the navigation of the waters, carry on
commerce over them, and have liberty of fishing therein freed from the obstruction or
interference of private parties.” Illinois Central, 146 U.S. at 452, 13 S. Ct. at 118. The State
could not grant title to submerged lands where “abdication is not consistent with the exercise
29
of that trust which requires the government of the State to preserve such waters for the use of
the public.” Illinois Central, 146 U.S. at 452, 13 S. Ct. at 118 (emphasis added). Even upon
transfer, the State’s control for purposes of the trust can never be lost. Illinois Central, 146
U.S. at 453, 13 S. Ct. at 118. The U.S. Supreme Court stated:
The State can no more abdicate its trust over property in which the whole
people are interested, like navigable waters and soils under them, so as to
leave them entirely under the use and control of private parties, except in the
instance of parcels mentioned for the improvement of the navigation and use
of the waters, or when parcels can be disposed of without impairment of the
public interest in what remains, than it can abdicate its police powers in the
administration of government and the preservation of the peace.
Illinois Central, 146 U.S. at 453, 13 S. Ct. at 118. In fact, Illinois Central illustrates the
principle that the State must protect the public’s opportunity to use and enjoy the waters it
holds in trust for the people “freed from the obstruction or interference of private parties.”
Illinois Central, 146 U.S. at 452, 13 S. Ct. at 118.
¶65 In Montana, the public trust as to waters is enshrined in our laws and our Constitution.
See Mont. Const. art. IX, 3(3); §§ 23-2-301 to 21-2-322, MCA. Article IX, § 3(3) of the
Montana Constitution provides:
All surface, underground, flood, and atmospheric waters within the boundaries
of the state are the property of the state for the use of its people and are subject
to appropriation for beneficial uses as provided by law.
The State does not only own navigable waters as a public trust; it also owns non-navigable
waters. Galt, 225 Mont. at 147, 731 P.2d at 915; see Mont. Const. art. IX, § 3(3).
¶66 Our decisions in Curran and Hildreth, as codified, protect the public’s right to
recreationally use its non-navigable waters, free from interference by private landowners. In
Curran, codified at § 23-2-302, MCA, we held that “any surface waters that are capable of
30
recreational use may be so used by the public without regard to streambed ownership or
navigability for nonrecreational purposes.” Curran, 210 Mont. at 53, 682 P.2d at 171. We
reaffirmed Curran’s holding that any waters capable of recreational use could be so used in
Hildreth. Hildreth, 211 Mont. at 35, 684 P.2d at 1091. There, we observed that, because the
Montana Constitution provides the State owns the waters for the benefit of its people, and
places no limit on their use, “this Court cannot limit their use by inventing some restrictive
test.” Hildreth, 211 Mont. at 35, 684 P.2d at 1091. The public has a broad use right to
surface waters and private landowners may not place obstacles that impede the public’s
exercise of its right. Curran, 210 Mont. at 52-53, 682 P.2d at 170-71. This use right is not
a property right, or an interest in the landowners’ property. See § 23-2-309, MCA. Rather, it
amounts to a recognition of the physical reality that in order for the public to recreationally
use its water resource, some “minimal” contact with the banks and beds of rivers is generally
necessary. See Galt, 225 Mont. at 147, 731 P.2d at 915.
¶67 Because the Montana Constitution grants the State ownership of all waters within its
borders, Kennedy’s reliance on Causby, 328 U.S. at 259, 66 S. Ct 1064-65, to assert he may
control use of the Ruby River’s waters is also misplaced. Causby involved use of airspace
over a chicken farm that interfered with the farmers’ business. See Causby, 328 U.S. at 259,
66 S. Ct. at 1064-65. To hold that a riparian owner “owns” the “space” overlying a riverbed,
when that space is occupied by water, would be to divest the State of title to waters it owns
by virtue of article IX, § 3(3), of the Montana Constitution.
¶68 Similarly, the State’s constitutionally-granted public trust ownership of all waters in
Montana distinguishes this case from Kaiser Aetna. That case concerned a “fishpond” on
31
private property in Hawaii, where owners had dredged a channel to connect the pond to the
ocean. Kaiser Aetna, 444 U.S. at 166-68, 100 S. Ct. at 386-87. Significantly to the majority
opinion, Hawaiian fishponds like the one at issue had always been considered private
property in Hawaii. Kaiser Aetna, 444 U.S. at 166, 179, 100 S. Ct. at 386, 392-93. Kaiser
Aetna’s recognition that a fishpond could constitute private property hinged on State law.
Here, Montana’s Constitution grants the State ownership of waters within the state. Mont.
Const. art. IX, § 3(3). Thus, Kaiser Aetna—and Hawaiian law—cannot support the
proposition that a Montana riparian owner owns the water overlying the bed of a non-
navigable river.
¶69 It is settled law in Montana that public recreational use of State-owned waters is not a
taking because title to non-navigable riverbeds does not pass to the public. As we stated in
State ex rel. Perry v. District Court, “ ‘[d]ecisions construing the Constitution should be
followed, in the absence of cogent reasons to the contrary . . . .’ ” 145 Mont. 287, 310, 400
P.2d 648, 660 (1965) (quoting State ex. rel. Kain v. Fischl, 94 Mont. 92, 20 P.2d 1057
(1933)). Some insignificant use of the riverbeds and river banks is, and always has been,
necessary to the public’s use and enjoyment of its resource. That use does not amount to an
easement or any other “interest” in land. See § 23-2-309, MCA. In Curran we explained
that since “the question of title to the bed is irrelevant to determination of navigability for
use, and Curran has no claim to the waters,” no taking of private property could occur.
Curran, 210 Mont. at 53, 682 P.2d at 171. We also observed in Hildreth, where Hildreth
brought a similar claim, that no taking of private property occurs in public use of beds and
banks of waters up to the high water mark because title does not pass with the use right.
32
Hildreth, 211 Mont. at 36-37, 684 P.2d at 1092. As observed by the United States District
Court in Madison v. Graham, no private property right is “being extracted” from Kennedy:
“In fact, the public has no interest at all in the private streambed per se, but only in the
publicly-owned surface waters that traverse the streambed.” Madison v. Graham, 126 F.
Supp. 2d 1320, 1324 (D. Mont. 2001). We can see no reason to overturn these longstanding
interpretations of our Constitution and our laws.
¶70 The terms of the deed granting the public right-of-way, along with the Montana
Constitution, the public trust doctrine and this Court’s decisions in Curran, Hildreth and
Galt, foreclose Kennedy’s argument. Kennedy’s predecessor in interest granted a right-of-
way encompassing parts of the Ruby River’s bed to the County, and the public may use that
right-of-way to access the Ruby River. Kennedy never owned a property right that allowed
him to exclude the public from using its water resource, including the riverbed and banks up
to the high water mark. Nothing has been taken from him. Kennedy has offered no
convincing reason to disrupt what has long been settled constitutional law in Montana.
CONCLUSION
¶71 We conclude that the District Court erred by finding a secondary easement that is
independent and separate from the public’s easement. The areas that are reasonably
necessary to support and maintain Seyler Bridge, and to ensure the public’s safe and
convenient use of it, are included in the Seyler Lane public road right-of-way. We therefore
remand for the District Court to consider the evidence in the record and conduct whatever
additional proceedings it deems necessary to establish a definite width of the public right-of-
way, applying the principles stated in this Opinion.
33
¶72 We further determine that the scope of use of the public road right-of-way is not
limited to the adverse usage through which it was acquired and that any foreseeable uses of a
public road right-of-way, including recreational use, are permitted.
¶73 Finally, Kennedy’s takings argument does not hold water: He presents no persuasive
argument that a compensable property interest has been taken from him or that we should
overturn our precedent and disrupt long-settled constitutional law.
¶74 Reversed and remanded for further proceedings consistent with this Opinion.
/S/ MICHAEL E WHEAT
We concur:
/S/ KURT KRUEGER
District Judge Kurt Krueger sitting for former Justice Brian Morris
/S/ MIKE MENAHAN
District Judge Mike Menahan sitting for Chief Justice Mike McGrath
/S/ PATRICIA COTTER
/S/ BETH BAKER
Justice Beth Baker, concurring.
¶75 The District Court made a finding of fact that “Seyler Bridge and its approaches on
Seyler Lane is a county road right-of-way that was established by prescriptive use.” No
party appeals this finding, all having stipulated to it before the trial court.1 We therefore
begin with the undisputed fact that at issue is a public road. The primary issue on appeal is,
having been acquired by prescriptive use, how wide is the public road where the bridge
crosses the river? I agree with the Court’s decision to remand this issue for further
1
It bears noting that Madison County was a party to the stipulation.
34
development in the District Court. I also concur with the Court’s disposition of Kennedy’s
cross-appeal. I write separately to address the principal misconception of law on which I
believe the Dissent falters.
¶76 The Court correctly notes our long-standing requirement, grounded in § 70-17-106,
MCA, that the width of a roadway acquired by prescription is determined “by the character
and extent of its use[.]” Opinion, ¶ 28. In that regard, the law requires proof by clear and
convincing evidence of “open, notorious, exclusive, adverse, continuous, and uninterrupted
use over the five-year statutory period.” Brown & Brown of MT, Inc., ¶ 19. See also
Swandal Ranch Co., 276 Mont. at 233, 915 P.2d at 843. Thus, “the public may obtain title
by adverse possession of that only which it has occupied during the full statutory period.”
Portmann, 149 Mont. at 95, 423 P.2d at 58. The Court also observes two additional statutes
that inform the determination of the Seyler Bridge’s width: § 7-14-2107(3), MCA (when
county road established, public acquires right-of-way “and the incidents necessary to
enjoying and maintaining it”), and § 60-1-103(2), MCA (bridge includes, among other
things, “the approaches to the bridge [and] lands used in connection with the bridge”).
¶77 With due respect, Justice McKinnon’s Dissent is wrong in suggesting that the out-of-
state authority cited by the Court does not support this holding. Dissent, ¶ 101. The cited
case law uniformly makes clear that the width of a prescriptive public road “necessarily
includes” both the “traveled surface area of the roadway” and the “adjacent land which is
needed for the prescription to be maintained as a public road[.]” Keidel, 290 N.W.2d at 258.
For similar reasons, her Dissent mischaracterizes the Court’s decision as “expand[ing]” the
public’s right of way. Dissent, ¶ 106. The Court’s conclusion is simply that the width of
35
Seyler Road at the Seyler Bridge “is determined by the terms of the grant or the nature of the
enjoyment by which [the roadway] was acquired.” Section 70-17-106, MCA. The language
of the statutes—§§ 60-1-103(2) and 7-14-2107(3), MCA—incorporates the principles
reflected in the case law that “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.” Reichman, 812 N.W.2d at 344. That the
prescriptive right does not allow the public “‘to lay out and construct an extended and
enlarged highway’” (Dissent, ¶ 102 (quoting Campbell, 137 So. at 112)) is precisely why a
definite width of the public road right-of-way must be determined.
¶78 Justice McKinnon’s focus on the law of prescriptive easements begins with the
proposition that a county road may not be acquired by prescriptive use, but must be formally
accepted by the board of county commissioners. Dissent, ¶ 87. Her Dissent maintains that
the laws regarding public highways should not inform the Court’s rulings in this case
because the statutes do not apply to prescriptive easements. Dissent, ¶ 95. I believe these
characterizations of the law to be in error, an error that leads the Dissenting Justices astray in
their ultimate conclusion that the law governing primary and secondary easements controls
the analysis in this case.
¶79 We have recognized that “a public easement is not the equivalent of a county road.
An easement is a nonpossessory interest in land.” Pedersen v. Dawson Co., 2000 MT 339,
¶ 23, 303 Mont. 158, 17 P.3d 393 (citing Kuhlman v. Rivera, 216 Mont. 353, 358, 701 P.2d
36
982, 985 (1985)). With one brief interval,2 it has long been the law in Montana that a public
road may be established by prescriptive use. See State v. Nolan, 58 Mont. 167, 172, 191 P.
150, 152 (1920). Section 2600 of the 1895 Political Code provided:
All highways, roads, streets, alleys, courts, places, and bridges, laid out or
erected by the public, or now traveled or used by the public, or if laid out or
erected by others, dedicated or abandoned to the public, or made such by the
partition of real property, are public highways.
(later modified and renumbered as § 1612, R.C.M. (1921); § 32-103, R.C.M. (1947)). That
section was repealed with the enactment of the Montana Highway Code in 1965 (1965 Mont.
Laws, ch. 197). In its place, the new Highway Code defined “public highways,” a definition
that remains today:
“Public highways” means all streets, roads, highways, bridges, and related
structures:
(a) built and maintained with appropriated funds of the United States or
the state or any political subdivision of the state;
(b) dedicated to public use;
(c) acquired by eminent domain, . . .; or
(d) acquired by adverse use by the public, with jurisdiction having been
assumed by the state or any political subdivision of the state.3
Section 60-1-103(22), MCA. Although not all public highways are county roads, all county
roads are public highways. See § 60-1-201(1), MCA (classification of public highways).
¶80 As the Court observes, we have held that a county road may be declared based upon
prescriptive use. E.g., Swandal Ranch Co., 276 Mont. at 233, 915 P.2d at 843. No party to
2
Section 2603 of the Political Code of Montana, enacted in 1895, provided that use alone was
insufficient to establish a public highway, “until so declared by the board of commissioners or by
dedication by the owner of the land affected.” The statute was amended in 1913 to delete the
prohibition against creating a public highway by use alone. See Richter v. Rose, 1998 MT 165, ¶ 28,
289 Mont. 379, 962 P.2d 583.
3
As the Court observes (Opinion, ¶ 9), and Madison County’s briefing makes clear, the County has
assumed jurisdiction of Seyler Bridge.
37
this case contests that point. “The law, doubtless, is that a highway may be established by
prescription as well as by proceedings taken in conformity with legislative authority[.]”
State v. Auchard, 22 Mont. 14, 15-16, 55 P. 361, 362 (1898). The Dissent’s contrary
suggestion notwithstanding (Dissent, ¶ 90), this Court in Swandal Ranch Co. expressly
affirmed a district court judgment that “declared a Park County road” by prescriptive use.
Swandal Ranch Co., 276 Mont. at 232, 236, 915 P.2d at 842, 844. Distinct from an
easement, there is a public possessory interest in a roadway acquired by adverse use. Justice
McKinnon largely focuses on a matter that is not at issue in this case: whether Seyler Lane
is a county road acquired by prescriptive use.
¶81 Though not directly an issue here, the discussion is not academic and merits response.
Because of Seyler Lane’s nature as a public roadway, the Court concludes that principles of
primary and secondary easements do not control the determination of its width at Seyler
Bridge. Rather, the width must be determined based on evidence of the “lands used in
connection with the bridge” (§ 60-1-103(2), MCA), “the incidents necessary to enjoying and
maintaining it” (§ 7-14-2107(3), MCA), and historical evidence of the “nature of the
enjoyment by which it was acquired” (§ 70-17-106, MCA). Opinion, ¶ 38. In contrast, the
Dissenting Justices would hold that Madison County has a right to lands beyond the reach of
the general public, but only for the singular purpose of maintenance of the road and bridge.
Dissents, ¶¶ 106, 126. The distinction is important, and the Court’s construction correct,
because once the width of the public road is established, the county does not have infinite
rights to chip away at the landowner’s property boundary to meet its maintenance needs. As
the Minnesota Supreme Court pointed out in Barfnecht v. Town Bd. of Hollywood Township,
38
232 N.W.2d 420, 424 (Minn. 1975), the government may accomplish its future needs for
“upgrading, widening, or improving public ways” acquired by prescription through the
process of eminent domain. The Colorado case cited by the Court includes a similar
analysis. There, the court agreed that if the width of a public road established by prescriptive
use “is to be expanded or the location changed, acquisition of additional land must be
established by eminent domain or otherwise.” Lovvorn, 701 P.2d at 144. Finally, in my
view, the analysis suggested by Justice Rice will apply to roads and bridges subject to a
public prescriptive easement, but not to cases such as this one, where there is no dispute that
the right of way at issue is a public road.
¶82 By recognizing the legal effect of the District Court’s finding that Seyler Lane is a
county road right-of-way that was established by prescriptive use, the Court avoids
confusion between possessory and non-possessory interests and protects landowners from
future encroachments outside the boundaries of the public right-of-way under the auspices of
a secondary easement, once width is established. How those principles affect the ultimate
outcome in this case, and whether the public has a right to access the Ruby River from Seyler
Bridge, are not decided today but must await the development of further evidence in the
District Court.4
/S/ BETH BAKER
4
I do not address Justice McKinnon’s separate discussion of Kennedy’s cross-appeal, except to note
that its criticism of the Court based on Richter (Dissent, ¶ 114 n. 10) appears misplaced. At issue in
Richter was an alleged common law dedication of a public right-of-way, whereas this case involves
an express dedication by Kennedy’s predecessor.
39
Justice Laurie McKinnon, dissenting in part and specially concurring in part.
¶83 I dissent from the Court’s decision as to Issues One through Three, regarding Seyler
Lane and Seyler Bridge. In my view, the Court’s Opinion disregards more than a century of
precedent governing prescriptive easements and undermines the balance the Legislature has
struck between landowners and recreationists. As to Issue Five, I agree with the ultimate
result the Court reaches regarding Lewis Lane and Lewis Bridge, but I do not agree with the
Court’s reasoning. I thus specially concur as to that issue.1
I. Width and Use of Public Right-of-Way at Seyler Lane and Seyler Bridge
¶84 At the outset, I believe the parties’ formulation of certain stipulated “facts” has
hindered our ability to render a legally sound decision in this case. The Pretrial Order, which
was signed by the trial judge and counsel for each party, lists numerous facts that “are
admitted, agreed to be true, and require no proof.” The confusion arises from the parties’
stipulation that “Seyler Bridge and its approaches on Seyler Lane is a county road right-of-
way that was established by prescriptive use.” Elsewhere in the Agreed Facts, the parties
appear to have stipulated that Seyler Lane is a “public highway,” as defined by
§ 60-1-103(22)(d), MCA—meaning that Seyler Lane was “acquired by adverse use by the
1
As to Issue Four, the Court is remanding this case for further proceedings on the width of
the Seyler Lane right-of-way. As the Court acknowledges, the District Court “found that the specific
surveys PLAA presented did not provide information on the dimensions of the Seyler Lane right-of-
way.” Opinion, ¶ 54. The Court then states, however, that PLAA is not precluded “from presenting
to the [District Court] on remand any COS that provide information regarding the dimensions of the
right-of-way.” Opinion, ¶ 55. To the extent the Court is implying here that PLAA’s surveys may
somehow be relevant, I believe the District Court has considered this issue already and that the
District Court’s evidentiary determinations were appropriate. PLAA has not shown that the District
Court abused its discretion when deciding the evidentiary value of the surveys, and I thus would
affirm the District Court’s rulings under Issue Four.
40
public, with jurisdiction having been assumed by [Madison County].” The question arises,
therefore, as to the significance of the parties’ separate characterization of Seyler Lane as “a
county road right-of-way that was established by prescriptive use.” For the reasons which
follow, I believe this characterization is inaccurate and that the Court errs by incorporating it
into the analysis of Seyler Lane’s width.2
A. “County Roads” are not Established by Prescriptive Use
¶85 “Public highways” are classified as (a) federal-aid highways, (b) state highways,
(c) county roads, and (d) city streets. Section 60-1-201(1), MCA. A “county road,” in turn,
is defined as “any public highway opened, established, constructed, maintained, abandoned,
or discontinued by a county in accordance with Title 7, chapter 14.” Section 60-1-103(7),
MCA (emphasis added); see also § 60-1-201(3), MCA. This specific definition of “county
road” controls over the general definition of “public highways.” Brookins v. Mote, 2012 MT
283, ¶ 28, 367 Mont. 193, 292 P.3d 347 (a specific statute controls over a general provision
to the extent of any inconsistency); accord § 1-2-102, MCA.
¶86 A “public highway” may be acquired by adverse (i.e., prescriptive) use by the public.
Section 60-1-103(22)(d), MCA. The statutorily prescribed methods for acquiring a “county
road,” in contrast, do not include “by prescriptive use.” Pursuant to Title 7, chapter 14,
2
Contrary to statements by the Court (Opinion, ¶ 18) and the Concurrence (Concurrence,
¶ 75), the District Court did not make a “finding,” based on evidence, that Seyler Lane is a county
road. Because the stipulated facts were “admitted, agreed to be true, and require no proof”
(emphasis added), those facts were not issues at trial. Indeed, following a review of the trial
transcript, it is clear that the parties were focused on other issues in the case. Correspondingly, in
their respective Proposed Findings of Fact submitted post-trial, PLAA and Kennedy each
distinguished between the “agreed facts” (the ones to which they had stipulated pretrial, as set forth
in the Pretrial Order) and the “determined facts” (the ones found “based upon the evidence presented
at trial”). The “county road” designation was a stipulated fact, not one “found” by the District Court
as the Court and the Concurrence mistakenly identify.
41
MCA, a “county road” may be established in any of the following ways (which are set forth
in § 7-14-2101(2)(b) and (3), MCA):
1. petition by freeholders, approval by resolution, and opening by the board of
county commissioners (see generally Title 7, chapter 14, part 26, MCA);
2. dedication for public use in the county and approval by resolution of the board of
county commissioners;
3. acquisition by eminent domain pursuant to Title 70, chapter 30, MCA, and
acceptance by resolution as a county road by the board of county commissioners;
4. an exchange with the State as provided in § 60-4-201, MCA;
5. recognition of a legal route by a district court pursuant to § 7-14-2622, MCA;
6. acceptance by resolution of the board of county commissioners, following a
public hearing, of a road that has not previously been considered a county road but
that has been laid out, constructed, and maintained with state or county funds; or
7. acceptance and approval by resolution of the board of county commissioners of a
road that is abandoned by the State.
¶87 While a public highway may be acquired through prescriptive use by the public, a
public highway is not a county road until the board of county commissioners formally
approves it as a county road pursuant to the methods outlined above.3 There is no evidence,
and nothing stated in the parties’ Agreed Facts, that the Madison County Board of
Commissioners approved Seyler Lane as a county road. Simply calling something a “county
road” in the course of litigation—as the parties appear to have done here—does not make it
one. “Implicit in all of Title 7, Chapter 14 as well as our prior decisions is that county roads
3
The one exception to this statement is recognition of a legal route by a district court
pursuant to § 7-14-2622, MCA. Although the board of county commissioners must be notified in
advance, the proceeding may be commenced in the district court by any “directly affected person.”
Section 7-14-2622(1), MCA. Nevertheless, this sort of proceeding does not apply to “prescriptive
easements.” Section 7-14-2622(5), MCA.
42
cannot be created without the county’s intent, expressed through its board of commissioners,
to do so.” Pedersen v. Dawson Co., 2000 MT 339, ¶ 20, 303 Mont. 158, 17 P.3d 393
(emphasis added); see also Garrison v. Lincoln Co., 2003 MT 227, ¶ 16, 317 Mont. 190, 77
P.3d 163 (emphasizing that our caselaw “does not pave the way for modern day citizens to
disregard currently applicable statutes governing the creation of public roads”).
¶88 For this reason, the fact that Madison County’s attorneys signed the Pretrial Order
stipulating that Seyler Lane is a “county road,” Concurrence, ¶ 75 n. 1, is not sufficient to
establish that Seyler Lane is, as a matter of law and fact, a county road. A county’s intent to
establish a county road must be expressed through its board of commissioners. Pedersen,
¶ 20. Likewise, the fact that Madison County “has assumed jurisdiction of Seyler Bridge,”
Concurrence, ¶ 79 n. 3, does not transform Seyler Lane into a county road. In fact, Madison
County asserted in the District Court that its right to maintain Seyler Lane and Seyler Bridge
arose from a prescriptive easement separate from the general public’s prescriptive easement
to travel on the roadway. In its post-trial Proposed Conclusions of Law, Madison County
proposed that “Madison County and the public have gained a prescriptive easement to travel
on the paved portion of Seyler Lane,” but that “Madison County has gained a prescriptive
easement to repair, replace and maintain the paved portion of Seyler Lane” and that
“Madison County has also gained a prescriptive easement to maintain areas beyond the
travelled surface and adjacent subsurface” (emphases added). These separate prescriptive
easements for maintenance would have been unnecessary if the County believed—as the
Court and the Concurrence mistakenly suggest—that Seyler Lane is a county road governed
by county road statutes. See § 7-14-2107, MCA (when the county commissioners acquire
43
property for county roads, the public gains “the right-of-way and the incidents necessary to
enjoying and maintaining it” (emphasis added)). Significantly, Madison County did not cite
this statute in its Proposed Conclusions of Law as authority to maintain Seyler Lane.
¶89 A reference to “county road” requires application of statutory provisions, while a
reference to “prescription” invokes a century of common law jurisprudence governing the
creation, width, and scope of prescriptive easements. The parties’ reference to “a county
road right-of-way,” while simultaneously stating that it was “established by prescriptive
use,” is legally inconsistent and thus hinders our ability to provide a sound decision. The
Court’s failure to properly address this distinction will not only provide confusing precedent,
but will ultimately prove difficult for the District Court to apply on remand.4
¶90 The Concurrence asserts “we have held that a county road may be declared based
upon prescriptive use,” citing Swandal Ranch Co. v. Hunt, 276 Mont. 229, 233, 915 P.2d
840, 843 (1996), in support of this assertion. Concurrence, ¶ 80. In Swandal Ranch, we
specifically noted that we were not considering the creation of a county road through
statutory procedures, but were instead addressing Park County’s claim that it “had
4
I note that the term “county roads established by prescriptive use” appears in two statutes
enacted in 2009. See §§ 7-14-2622(5), 23-2-312(3), MCA. The origin of this terminology—which
is inconsistent with the provisions just discussed—is not clear. It may have derived from a 2000
opinion of the Montana Attorney General, upon which House Bill 190 (2009) was based. See Laws
of Montana, 2009, ch. 201, preamble; Mont. Atty. Gen. Op. 48-13, 2000 Mont. AG LEXIS 6 (May
26, 2000) (providing an opinion on access to Ruby River at three bridge crossings, including Seyler
Bridge, and referring to “county roads and bridges created by prescription”). The terminology also
could have derived from the District Court’s September 30, 2008 order in the present litigation,
which refers to the roads at issue, including Seyler Lane, as “county roads.” (PLAA states in its
opening brief on appeal that the District Court’s 2008 order was “essentially codified” in
§§ 7-14-2134(4), 23-2-312, and 23-2-313, MCA.) Regardless of its origin, however, “county road”
means a public highway established by a county in accordance with statutory formalities. Pedersen,
¶ 20; §§ 7-14-2101, 60-1-103(7), 60-1-201(3), MCA.
44
established a public easement through prescriptive use” over Wallrock Road. 276 Mont. at
231, 234, 915 P.2d at 842, 843 (emphasis added). As the Concurrence recognizes, “ ‘a
public easement is not the equivalent of a county road.’ ” Concurrence, ¶ 79 (quoting
Pedersen, ¶ 23). Although we referred to Wallrock Road at times as a “county road,” we did
so primarily in the context of acknowledging that the Park County Commissioners’ attempt
to declare a county road in October 1950 had been “legally inadequate [under] . . . the
statutory process.” Swandal Ranch, 276 Mont. at 233-34, 915 P.2d at 843. The specific
issue addressed in our opinion was “whether use of the road was permissive or adverse.” See
Swandal Ranch, 276 Mont. at 232-36, 915 P.2d at 843-45. Contrary to the Concurrence’s
suggestion, there is no indication that we considered whether prescriptive use could establish
a “county road,” as distinguished from a “public easement,” under the statutes governing the
creation of county roads. Moreover, such a holding would have been inconsistent with the
fact that “county roads cannot be created without the county’s intent, expressed through its
board of commissioners, to do so.” Pedersen, ¶¶ 20-23.
B. “County Road” Statutes are Inapplicable
¶91 In spite of the parties’ imprecision in referring to Seyler Lane as “a county road right-
of-way that was established by prescriptive use,” the Court and the Concurrence nevertheless
treat Seyler Lane as though it is a county road whose width is determined by certain statutes.
Citing §§ 7-14-2107(3) and 60-1-103(2), MCA, the Court observes that “[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.” Opinion, ¶ 30; see also
Opinion, ¶¶ 24, 29, 38. The Concurrence also contends that these two statutes “inform the
45
determination of the Seyler Bridge’s width.” Concurrence, ¶ 76. I believe this approach is
mistaken for three reasons.
¶92 As an initial matter, there is no indication in the record that the parties believed the
width of the public right-of-way over Seyler Lane and Seyler Bridge should be determined
by the Title 7 and Title 60 statutes on which the Court and the Concurrence rely. That
approach is of the Court’s and the Concurrence’s own devising. As far back as the July 2008
hearing on the cross-motions for summary judgment, and in more recent District Court
filings such as the Pretrial Order, the parties referred to Seyler Lane indiscriminately as a
“public highway by prescription,” a “public prescriptive road,” a “public prescriptive right-
of-way,” and a “county road.”5 The parties did not attribute the same meaning to the term
“county road” as the Court and the Concurrence have. Instead, PLAA and Kennedy
correctly recognized that the right-of-way’s width is governed by common law principles
(which I discuss in the next section below).
¶93 Second, the Court and the Concurrence fail to cite any statutory basis for applying
Title 7 and Title 60 statutes to determine the width of a public road established by
prescription. Significantly, § 70-17-106, MCA, contradicts this approach. It states that
“[t]he extent of a servitude is determined by [1] the terms of the grant or [2] the nature of the
enjoyment by which it was acquired.” Section 70-17-106, MCA. “[T]he terms of the grant”
applies in the case of an express easement, while “the nature of the enjoyment by which it
5
It should be noted that “highway” and “road” are not the same as “county road.”
“Highway” and “road” are “general terms denoting a public way for purposes of vehicular travel and
include the entire area within the right-of-way.” Section 60-1-103(19), MCA. “County road” means
“any public highway opened, established, constructed, maintained, abandoned, or discontinued by a
county in accordance with Title 7, chapter 14.” Section 60-1-103(7), MCA.
46
was acquired” applies in the case of a prescriptive easement. Nothing in this statute indicates
that the width of a prescriptive public road is determined by Title 7 or Title 60 statutes.
Rather, consistent with common law principles, § 70-17-106, MCA, recognizes that
prescriptive easements are determined by use.
¶94 Third, the Court’s approach is also contrary to precedent. In State v. Portmann, 149
Mont. 91, 423 P.2d 56 (1967), we specifically addressed whether a statute providing that
“[t]he width of all public highways . . . must be sixty feet” (now codified, as amended, at
§ 7-14-2112(1), MCA) applied to extend the width of a public road acquired by prescription.
We held that applying this statute to determine the width of such a road would be
“inconsistent with the general rule that the user determines the nature and the extent of the
easement or title acquired.” Portmann, 149 Mont. at 94, 423 P.2d at 58. We reaffirmed that,
to “give the fullest recognition to the traditional requirements of adverse possession,” the
public “may obtain title by adverse possession of that only which it has occupied during the
full statutory period.” Portmann, 149 Mont. at 95-96, 423 P.2d at 58 (internal quotation
marks omitted). We concluded that the 60-foot-width statute “was intended by the
Legislature to apply only to public roads which were laid out by the official act of the proper
public officials and was never intended to apply to prescriptive easements.” Portmann, 149
Mont. at 96, 423 P.2d at 58. We further held that “the rights acquired by adverse use can
never exceed the greatest use made of the land for the full prescriptive period.” Portmann,
149 Mont. at 96, 423 P.2d at 58. In so doing, we acknowledged authority from other
jurisdictions—namely, State ex rel. Game, Forestation and Parks Commission v. Hull, 97
N.W.2d 535 (Neb. 1959) (the width of a highway acquired by prescription is determined as a
47
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), and Mulch v. Nagle, 197 P. 421 (Cal. App. 1st Dist.
1921) (a road established through public use does not fall within the statutory minimum for
public roads; the minimum width applies only to roads formally laid out by the proper public
authorities).
¶95 Like the Title 7 statute addressed in Portmann, the two statutes invoked by the Court
here were “never intended to apply to prescriptive easements.” 149 Mont. at 96, 423 P.2d at
58. Section 60-1-103(2), MCA, concerns “bridge[s] constructed by the department [of
transportation]”; it says nothing about prescription. Section 7-14-2107(3), MCA, states that
“[b]y taking or accepting interests in real property for county roads, the public acquires only
the right-of-way and the incidents necessary to enjoying and maintaining it.” This provision,
however, is part of a statute that concerns county roads established through the “petition”
process. See § 7-14-2107(1), (2), MCA. The statute says nothing about what the public
acquires through prescriptive use.
¶96 The Concurrence nevertheless posits that these statutes incorporate the principles
reflected in caselaw. Concurrence, ¶ 77. While the statutes may appear to be consistent with
common law principles, however, the Court and the Concurrence have construed them as
authority for expanding the width of a prescriptive right-of-way, in violation of the
longstanding rules that “the user determines the nature and the extent of the easement or title
acquired” and “the public may obtain title by adverse possession of that only which it has
occupied during the full statutory period.” Portmann, 149 Mont. at 94-95, 423 P.2d at 58
(internal quotation marks omitted). Section 7-14-2107(3), MCA, clearly is intended to limit
48
the interest that the public acquires when a county condemns or contracts for a right-of-way
to “only” the right-of-way and the incidents necessary to enjoying and maintaining it. The
Court and the Concurrence twist this provision’s meaning by suggesting, first, that it applies
to public highways created by prescription and, second, that it expands the width of a
prescriptive public right-of-way.
¶97 I am aware of no precedent in this Court’s history—and neither the Court nor the
Concurrence cites any—for using §§ 7-14-2107(3) and 60-1-103(2), MCA, to determine the
width of a public road established by prescription. These statutes were not intended for that
purpose, and the Court’s approach here is contrary to well-established precedents which hold
that the width of a prescriptive public road is determined by actual “use” and “occupation.”
Maynard v. Bara, 96 Mont. 302, 307, 30 P.2d 93, 95 (1934); Portmann, 149 Mont. at 95-96,
423 P.2d at 58. I would apply this law, and the common law rules discussed below, in
determining the width of the Seyler Lane right-of-way.
C. Common Law Principles Dictating the Right-of-Way’s Width
¶98 A party seeking to establish a prescriptive public easement must show (by clear and
convincing evidence) open, notorious, adverse, continuous, and uninterrupted use of the
claimed easement for the full statutory period.6 Graham v. Mack, 216 Mont. 165, 172-73,
699 P.2d 590, 595 (1984); Wareing v. Schreckendgust, 280 Mont. 196, 204-06, 930 P.2d 37,
42-43 (1996); Heller v. Gremaux, 2002 MT 199, ¶ 12, 311 Mont. 178, 53 P.3d 1259.
Additionally, the party must show that the public pursued a definite fixed course, without
6
The statutory period was five years prior to 1893, ten years from 1893 to 1953, and five
years since 1953. Yellowstone River, LLC v. Meriwether Land Fund I, LLC, 2011 MT 263, ¶ 23
n. 9, 362 Mont. 273, 264 P.3d 1065.
49
any deviation, for the full statutory period.7 Pope v. Alexander, 36 Mont. 82, 89, 92 P. 203,
205 (1907); Peasley v. Trosper, 103 Mont. 401, 405-06, 64 P.2d 109, 110-11 (1936);
Brannon v. Lewis & Clark Co., 143 Mont. 200, 203-04, 387 P.2d 706, 708-09 (1963);
Swandal Ranch, 276 Mont. at 233, 915 P.2d at 843.
¶99 Here, the parties have stipulated that the foregoing elements have been met and 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.” The question is what
rights, if any, the public has outside the paved portion of Seyler Lane. In this regard, the
parties argue fundamentally different theories as to the legal significance of the stipulated
facts. In Kennedy’s view, the right-of-way to which the parties stipulated does not give the
public any rights outside the paved portion of Seyler Lane. As such, Kennedy contends that
PLAA must establish a separate prescriptive “footpath” leading from the pavement down to
Ruby River; in other words, PLAA must prove, by clear and convincing evidence, that the
public followed a definite, fixed course between the pavement and the water openly,
notoriously, adversely, continuously, and uninterruptedly for the full prescriptive period. In
PLAA’s view, however, the right-of-way to which the parties stipulated includes not only the
paved portion of Seyler Lane, but also “sufficient land” alongside the pavement for ditches,
7
I agree with PLAA that the District Court was incorrect in stating that “[r]ecreational use is
insufficient to establish a prescriptive easement.” In Public Lands Access Assn. v. Boone and
Crockett Club Foundation, Inc., 259 Mont. 279, 856 P.2d 525 (1993)—the primary authority cited
by the District Court on this issue—we did not hold that public use is insufficient if it is recreational;
rather, we held that public use is insufficient if it is occasional. 259 Mont. at 285, 856 P.2d at
528-29. There is no reason why traveling a definite, fixed course over private land in an open,
notorious, adverse, continuous, and uninterrupted manner for the full statutory period should not
ripen into a prescriptive right-of-way merely because the people who do so are recreationists.
Nevertheless, for reasons discussed below, I believe the District Court ultimately reached the correct
result.
50
repairs, and other public uses—such as “accessing the Ruby River.” PLAA states that it “is
not seeking to acquire a new prescriptive easement beyond the existing Seyler Lane right-of-
way.” Rather, PLAA believes the stipulated right-of-way is wide enough to enable the
public to reach the river.
¶100 In my view, PLAA’s theory—and this Court’s tacit adoption of it—is contrary to over
a century of precedent governing prescriptive easements. Where the public claims a right-of-
way founded on prescriptive use, this Court has been unequivocal that “[t]he occupancy or
use by the public of one portion of the road does not avail it in its claim to another portion
not occupied by it. . . . [T]he public may obtain title by adverse possession of that only
which it has occupied during the full statutory period.” Maynard, 96 Mont. at 307, 30 P.2d
at 95; accord State v. Auchard, 22 Mont. 14, 16, 55 P. 361, 362 (1898) (the right is “confined
to the very way claimed and traveled during the period”).
¶101 Various out-of-state cases recognize that while the dimensions of a prescriptive public
road are determined by the public’s actual use of the land in question as a roadway during
the prescriptive period, the right-of-way necessarily includes an incidental right to use
adjacent land to the extent reasonably necessary to support and maintain the traveled surface
area, such as shoulders, slopes, and ditches. Semmerling v. Hajek, 630 N.E.2d 496, 501 (Ill.
App. 2d Dist. 1994); Platt v. Ingham Co. Road Commn., 198 N.W.2d 893, 894 (Mich. App.
1972); Barfnecht v. Town Bd. of Hollywood Township, 232 N.W.2d 420, 423 (Minn. 1975);
Campbell v. Covington Co., 137 So. 111, 112 (Miss. 1931); Teadtke v. Havranek, 777
N.W.2d 810, 820 (Neb. 2010); Nikiel v. City of Buffalo, 165 N.Y.S.2d 592, 597 (N.Y. Sup.
Ct. 1957); Keidel v. Rask, 290 N.W.2d 255, 258 (N.D. 1980); McKenzie Co. v. Reichman,
51
2012 ND 20, ¶¶ 31-33, 812 N.W.2d 332; Yturria Town & Improvement Co. v. Hidalgo Co.,
125 S.W.2d 1092, 1094 (Tex. App.—San Antonio 1939). However, contrary to the Court’s
discussion (Opinion, ¶ 25), these cases do not hold that the maintenance and support area
may also be used for public travel.
¶102 In fact, the Semmerling court rejected such an argument:
Here, there is . . . no evidence that the public used the grassy areas on either
side of the road for road purposes. To the contrary, the evidence established
that public use was limited to the paved portion of the road. The trial court
certainly was not required to conclude in the absence of any other evidence
that, just because the Township mowed those areas, the prescriptive easement
encompassed those areas.
630 N.E.2d at 501; accord Campbell, 137 So. at 112 (“The prescriptive right carries with it
the beaten path and whatever is necessary to make the beaten path a usable highway, but this
does not mean that the prescriptive right carries with it the right in the public to lay out and
construct an extended and enlarged highway . . . .”). By the same reasoning, the fact that
Madison County maintains the areas alongside the paved portion of Seyler Lane does not
mean that the public’s right of travel extends to those areas.
¶103 In Barfnecht, the court considered a statute which provided for the acquisition of
highways by adverse public use. It stated that any road used and kept in repair for at least six
years as a public highway is deemed dedicated to the public to the width of two rods (33
feet) on each side of the center line thereof. Barfnecht, 232 N.W.2d at 422. The plaintiffs
argued that recognizing a prescriptive right-of-way greater in width than the area actually
used by the public during the period of prescription would amount to an unconstitutional
52
taking of private property. The court, however, construed the statute so as to avoid this
result. The court observed that a prescriptive public easement
arises from the fact that [adverse public] use serves to give the owner notice
that, if he means to dispute the rightfulness of the public use, he must assert
his right within a statutory period by physical action or suit. The statute
provides a statute of limitations, the running of which estops an owner from
denying the existence of a public easement. Public use cannot be said to apply
to lands not actually used. There is no reason that an owner should know that
he is required to dispute the rightfulness of a nonexistent user. A property
owner thus receives no notice as to a public claim on any property in excess of
that which has actually been used.
Barfnecht, 232 N.W.2d at 423 (footnote and paragraph break omitted). The court held,
therefore, that “[p]rivately owned land cannot become public road by adverse use beyond the
portion so used merely by a statutory pronouncement to that effect.” Barfnecht, 232 N.W.2d
at 423. Likewise, here, Title 7 and Title 60 statutes cannot be used to expand the Seyler
Lane right-of-way beyond the width to which the parties stipulated—“the paved portion” of
the road—without implicating an unconstitutional taking of private property.
¶104 As for the other out-of-state cases, Teadtke and Yturria did not involve issues of
maintenance and support in relation to an easement’s width. Nikiel was based on a New
York statute which provided that the width of prescriptive public highways is at least three
rods (49.5 feet). 165 N.Y.S.2d at 596-97. This is contrary to Montana law, which states that
the width of prescriptive public roads is limited to the area actually occupied and used during
the statutory period. Portmann, 149 Mont. at 95-96, 423 P.2d at 58. The Platt decision is
consistent with this principle; the court there held that “though the width of a prescriptive
easement in a public highway includes shoulders and ditches needed and actually used, it
does not include the allowance of a width for shoulders and ditches not used but needed”—
53
the point being that the easement’s width is determined by actual use. 198 N.W.2d at 894
(emphases added). Lastly, Keidel distinguished the “actual traveled surface area of the
roadway” from the “adjacent land which is needed for the prescription to be maintained as a
public road.” 290 N.W.2d at 258; accord McKenzie, ¶ 31. Neither Keidel nor McKenzie
held that the adjacent land may be used as an expanded travel area.
¶105 My disagreement with the Court, therefore, is with the notion that the adjacent land
needed to support and maintain a prescriptive public road may be used by the public for
other purposes, such as traversing down to a stream. Admittedly, the Court’s Opinion is
inconsistent in this regard. On one hand, we are told that “[r]ecreational use . . . may be
considered in determining the width of the public road right-of-way.” Opinion, ¶ 36. The
Court thus implicitly allows recreational use to determine the width of a right-of-way beyond
that necessary for maintenance. On the other hand, however, we are told that “[a]ny
recreational uses by the public beyond the width necessary for the construction, maintenance
and repair of the roadway and the bridge would have to be established through clear and
convincing evidence for the requisite statutory period.” Opinion, ¶ 38. Contrary to the
language in ¶ 36, the language in ¶ 38 indicates that any recreational use beyond the width
necessary for maintenance will have to be proved as a separate prescriptive easement. How
the parties and the District Court are to analyze recreational use on remand is, therefore,
ambiguous.
¶106 Nevertheless, to the extent the Court is permitting recreational use to expand the
width of the stipulated right-of-way beyond the paved surface of Seyler Lane, I strongly
disagree. The Montana and out-of-state precedents cited above are clear, at least in my view,
54
that the width of a prescriptive public road is defined by the definite, fixed course that the
public actually used during the period of prescription. As we stated in Portmann, to “give
the fullest recognition to the traditional requirements of adverse possession,” the public “may
obtain title by adverse possession of that only which it has occupied during the full statutory
period.” 149 Mont. at 95-96, 423 P.2d at 58 (internal quotation marks omitted). Here,
pursuant to the parties’ stipulations, the occupied area consists only of “the paved portion” of
Seyler Lane. Of course, as explained, a prescriptive road includes an incidental right to use
adjacent land—such as shoulders, slopes, and ditches—that is reasonably necessary to
support and maintain the roadway. Obviously, without such land, the road would become
unusable as a public right-of-way. But I am aware of no authority—and neither PLAA nor
the Court nor the Concurrence cites any—which holds that the land needed to support and
maintain the beaten path may be transformed into part of the beaten path. That is the crux of
my disagreement with our Opinion. In my view, the Court is fundamentally mistaken in
holding that the land alongside the beaten path may be used for purposes in addition to
simple maintenance and support.
¶107 My conclusion is supported not only by the aforementioned precedents, but also by
various statutes which limit where particular public uses may occur within a single right-of-
way. Although a public right-of-way may be wide enough to encompass several uses—such
as vehicular travel, pedestrian travel, bicycle travel, and maintenance work—this does not
mean that all of these uses may occur everywhere within the right-of-way. The public’s right
to use one area for a specific purpose does not give it the right to use that area for an entirely
different purpose. Vehicular travel, for example, is confined to the roadway. See
55
§ 61-8-321(1), MCA (requiring vehicles to be operated on the right half of the roadway);
§ 61-1-101(66), MCA (defining “roadway” as “that portion of a highway improved,
designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder”).
Pedestrians are prohibited from walking on the roadway if a sidewalk is available, and are
otherwise required to walk “on the shoulder, as far as practicable from the edge of the
roadway.” Section 61-8-506, MCA. Similar restrictions exist with regard to bicyclists,
§ 61-8-605, MCA, and snowmobiles, § 23-2-631, MCA.
¶108 The cases the Court cites at ¶ 24 of the Opinion do not support the conclusion that
maintenance work by Madison County employees in the area along the paved portion of
Seyler Lane gives the public the right to use that same area for other, nonmaintenance
purposes. In McClurg v. Flathead County Commissioners, 188 Mont. 20, 24, 610 P.2d 1153,
1156 (1980), Rasmussen v. Fowler, 245 Mont. 308, 312, 800 P.2d 1053, 1056 (1990),
Swandal Ranch, 276 Mont. at 234-36, 915 P.2d at 844-45, Hitshew v. Butte/Silver Bow
County, 1999 MT 26, ¶ 18, 293 Mont. 212, 974 P.2d 650, and Public Lands Access Assn. v.
Jones, 2004 MT 394, ¶ 33, 325 Mont. 236, 104 P.3d 496, we held that evidence of
maintenance by local authorities supports a finding of adversity. We were concerned in
these cases with whether a prescriptive right-of-way had been proved, not with how wide it
was. As for Smith v. Russell, 2003 MT 326, 318 Mont. 336, 80 P.3d 431, this case did not
involve a road established by prescription.
¶109 In holding that there is a “single, unified, public road right-of-way,” any portion of
which may be used by the public for travel, Opinion, ¶¶ 32, 52, the Court disregards long and
well-established precedent recognizing that the right to use adjacent land for support and
56
maintenance of a prescriptive public road is incidental to the right to travel on that road.
While the Court consumes a large portion of today’s Opinion faulting the District Court’s
characterization of this right as a “secondary easement,”8 Opinion, ¶¶ 18-32, the fact remains
that, whatever the right is called, it is incidental to the right of travel on the roadway and it is
limited to the purpose for which it exists: maintenance and support. This principle is simply
an application of the maxim that “ ‘[w]hen an easement or other property right is created,
every right necessary for its enjoyment is included by implication.’ ” Mattson v. Mont.
Power Co., 2009 MT 286, ¶ 37, 352 Mont. 212, 215 P.3d 675 (quoting Sullivan v. Donohoe,
191 N.E. 364, 365 (Mass. 1934)); see also Laden v. Atkeson, 112 Mont. 302, 305-06, 116
P.2d 881, 883-84 (1941) (the right to enter upon the servient tenement for the purpose of
repairing an easement is “ ‘a mere incident of the easement’ ”). The incidental right of
maintenance and support is to be exercised only when necessary and in such a manner as not
to needlessly increase the burden upon the servient tenement. Laden, 112 Mont. at 306, 116
P.2d at 884; Shammel v. Vogl, 144 Mont. 354, 365-66, 396 P.2d 103, 109 (1964); O’Connor
v. Brodie, 153 Mont. 129, 140, 454 P.2d 920, 926 (1969); Sharon v. Hayden, 246 Mont. 186,
189-90, 803 P.2d 1083, 1086 (1990); Kephart v. Portmann, 259 Mont. 232, 238, 855 P.2d
120, 124 (1993); Engel v. Gampp, 2000 MT 17, ¶ 43, 298 Mont. 116, 993 P.2d 701;
Musselshell Ranch Co. v. Seidel-Joukova, 2011 MT 217, ¶ 18, 362 Mont. 1, 261 P.3d 570.
¶110 The Court attempts to distinguish these cases on the ground that they involved private
easements and not “a county road acquired by prescriptive use.” Opinion, ¶ 24. The Court,
8
As noted, Madison County essentially claimed a “secondary easement” in the District Court
proceedings. Supra ¶ 88.
57
mistakenly, construes provisions within Title 7 and Title 60 to support this distinction. The
law of prescription, however, is governed by this Court’s precedents. See Swandal Ranch,
276 Mont. at 233, 915 P.2d at 843 (“The elements of prescriptive easement have been
defined through case law.”). The only distinction our cases have made between public and
private prescriptive easements is the element of exclusivity, which is not required to establish
a public prescriptive easement.9 Heller v. Gremaux, 2002 MT 199, ¶ 12, 311 Mont. 178, 53
P.3d 1259. Kennedy does not deny that Madison County may access his property to
maintain and support the Seyler Lane right-of-way. At issue here is whether common law
principles of prescription permit the width of a prescriptive easement, whether private or
public, to be expanded beyond the area that was used and occupied during the prescriptive
period, such that the area alongside the original traveled way may also be used for travel.
Under our precedents, the clear answer to this question is no. Maynard, 96 Mont. at 307, 30
P.2d at 95 (“The occupancy or use by the public of one portion of the road does not avail it
in its claim to another portion not occupied by it.”); Auchard, 22 Mont. at 16, 55 P. at 362
(the prescriptive right is “confined to the very way claimed and traveled during the period”).
The out-of-state cases discussed above are in accord. As Kennedy points out, “if the area
used for maintenance could be transformed into a new traveled way, then the easement could
be expanded forever simply by paving over that area, which would create a right to more
maintenance, ad infinitum.” Likewise, the District Court observed in its Conclusions of Law
9
The Court today adopts another distinction: that, unlike private prescriptive easements, the
scope of uses within public prescriptive easements is broad enough to include reasonably foreseeable
public uses. Opinion, ¶¶ 46-51. Although I do not disagree with this holding, I find it irrelevant
because the parties here do not dispute the public uses that may occur within the stipulated right-of-
way.
58
that the County’s “right to use maintenance areas cannot be transformed into a new traveled
way. The travel easement could be expanded forever simply by paving the areas used for
maintenance which could create a right to use yet more land for lateral and subjacent
support. Such a result would be impossible to square with Portmann . . . . It also defies
common sense.”
¶111 Public prescriptive easements are founded on the definite, fixed course established
during the prescriptive period. There is an incidental right to use adjacent land as support for
the traveled way, but there is no authority for our holding that the land used for support and
maintenance may also be used by the general public as a supplemental area of travel. In my
view, we are misapplying statutory provisions and prescriptive easement law in order to
facilitate public access to Ruby River. Stream access laws are for the Legislature to consider
and design. House Bill 190, passed by the Legislature in 2009, resulted in a new statute that
authorizes any person to gain access to surface waters for recreational use by using (a) a
public bridge, its right-of-way, and its abutments, and (b) a county road right-of-way.
Section 23-2-312(1), MCA. Other legislation permits fencing within the right-of-way for
livestock control or property management, as long as the fencing provides for public passage
to surface waters. Sections 7-14-2134(4), 23-2-313(1), MCA. Importantly, this legislation
expressly excludes a certain category of public roads from its application: those established
through prescriptive use. Section 23-2-312(3), MCA. Our disregard of precedent—justified
by a distinction artificially drawn, for the first time, today between private and public
easements—upsets the balance achieved by the 2009 Legislature between recreationists and
landowners.
59
D. Remand is Unnecessary
¶112 Lastly, I do not believe it is necessary to remand this case for a determination of the
Seyler Lane right-of-way’s width. Pursuant to the parties’ stipulation, the prescriptive public
road consists of the paved portion of Seyler Lane and Seyler Bridge, which varies between
20 and 24 feet in width. PLAA has failed to establish that the public has a right to travel
anywhere off the paved portion of the road and bridge. While the prescriptive road includes
an incidental right to use any adjacent land that is reasonably necessary to maintain and
support the traveled surface area, the width of that maintenance and support area is not a
question presented in this lawsuit. Kennedy does not dispute that Madison County may
access his property to maintain and support the roadway, and Kennedy does not claim that
Madison County has exceeded this right. Thus, in my view, there is no need to remand for a
determination of the width of the incidental right of maintenance and support. What PLAA
wants in this lawsuit is to obtain recognition of a right in the general public to travel over the
adjacent land to get to the river. PLAA is clear that it is “not seeking to acquire a new
prescriptive easement beyond the existing Seyler Lane right-of-way.” Rather, PLAA
contends that the right to access the river is encompassed within the right-of-way to which
the parties stipulated. PLAA has failed to establish any legal basis for such a right, however.
I accordingly would affirm the District Court’s judgment as to Seyler Lane and Seyler
Bridge.
II. Access at Lewis Lane and Lewis Bridge
¶113 Lewis Lane and Lewis Bridge are also on Kennedy’s land. In 1910, Kennedy’s
predecessor dedicated Lewis Lane to Madison County with the following language:
60
A strip of land thirty feet wide on each side of the center of the County road,
as at present laid out, running across the S.E.1/4 of Section 23, in Township 4
South of Range 6 West M.P.M. It is intended to convey by this deed a right of
way sixty feet wide and running entirely through said S.E.1/4 of Section 23,
for a County road.
The District Court concluded that the public could use this 60-foot-wide right-of-way to
reach Ruby River. The court noted that Lewis Bridge is less than 60 feet wide, which leaves
room alongside the bridge for the public to walk down to the river and still be within the
physical boundaries of the 60-foot-wide easement.
¶114 Kennedy contends that the District Court erred. He argues that the 1910 deed does
not express any intent to authorize access to the river for public recreation.10 This presents a
question of deed interpretation. In Bolinger v. City of Bozeman, 158 Mont. 507, 493 P.2d
1062 (1972), we agreed with the principle that
[w]hether or not a particular use amounts to a diversion from that for which
the dedication was made depends on the circumstances of the dedication and
the intention of the party making it. It has been held that such use is
authorized as is fairly within the terms of the dedication and reasonably serves
to fit the property for enjoyment by the public in the manner contemplated. In
other words, the dedicator is presumed to have intended the property to be
used in such way by the public as will be most convenient and comfortable
and according to not only the properties and usages known at the time of the
dedication, but also to those justified by lapse of time and change of
conditions.
158 Mont. at 521, 493 P.2d at 1069 (emphasis and internal quotation marks omitted).
10
The Court faults Kennedy for “fail[ing] to demonstrate that his predecessor did not intend
to authorize access to the Ruby River from Lewis Lane for public fishing, wading, hunting or other
uses.” Opinion, ¶ 60. However, under our precedent, it is not Kennedy’s burden to show that his
predecessor did not intend to grant such access. Rather, the party claiming the easement (PLAA) has
the burden to prove the facts necessary to establish the easement, i.e., that Kennedy’s predecessor
did intend to authorize public access to Ruby River for recreation. Richter v. Rose, 1998 MT 165,
¶ 35, 289 Mont. 379, 962 P.2d 583.
61
¶115 Here, Kennedy’s predecessor dedicated Lewis Lane without any explicit
qualifications or limitations on the use of the road: “It is intended to convey by this deed a
right of way sixty feet wide and running entirely through said S.E.1/4 of Section 23, for a
County road.” Kennedy nevertheless contends that, during the period when his predecessor
made this dedication, the public did not have the right to use nonnavigable streams—such as
Ruby River—for recreational purposes. See Herrin v. Sutherland, 74 Mont. 587, 596-97,
241 P. 328, 331 (1925). As we stated in Bolinger, however, the dedicator is presumed to
have intended the property to be used in such way by the public as will be most convenient
and comfortable and according to not only the properties and usages known at the time of
the dedication, but also to those justified by lapse of time and change of conditions. 158
Mont. at 521, 493 P.2d at 1069. In this regard, the 2009 Legislature clarified that a person
may gain access to surface waters for recreational use by using (a) a public bridge, its right-
of-way, and its abutments, and (b) a county road right-of-way. Section 23-2-312(1), MCA.
The unqualified language of the 1910 deed is consistent with a dedication for such use.
III. Kennedy’s Takings Argument
¶116 As an alternative to his arguments concerning the public rights-of-way over Seyler
Lane and Lewis Lane, Kennedy argues that the District Court’s and this Court’s recognition
of the public’s right to engage in recreational use of Ruby River as it flows through his land
amounts to an unconstitutional taking of his property. His theory, which is premised on his
ownership of the bed of Ruby River, appears to be that if the public has no right to use Ruby
River in the first place, then the public has no need to get there by crossing his land
alongside Seyler Lane and Lewis Lane.
62
¶117 In this regard, Kennedy asserts that a landowner has the right to control the space
above his land. He cites a number of out-of-state cases for this principle, including Illinois
Central Railroad Co. v. Illinois, 146 U.S. 387, 452, 13 S. Ct. 110, 118 (1892) (title to the
lands under the navigable waters of Lake Michigan “necessarily carries with it control over
the waters above them”); U.S. v. Causby, 328 U.S. 256, 264, 66 S. Ct. 1062, 1067 (1946)
(“[t]he landowner owns at least as much of the space above the ground as he can occupy or
use in connection with the land”); Kaiser Aetna v. U.S., 444 U.S. 164, 100 S. Ct. 383 (1979)
(owner of private pond had right to exclude the public from boating on the pond); People v.
Emmert, 597 P.2d 1025, 1027 (Colo. 1979) (“ownership of the bed of a non-navigable
stream vests in the owner the exclusive right of control of everything above the stream bed”);
and Butler v. Frontier Telephone Co., 79 N.E. 716, 718 (N.Y. 1906) (“space above land is
real estate the same as the land itself”). He also cites our 1925 decision in Herrin, where we
stated: “[I]t is held uniformly that the public have no right to fish in a nonnavigable body of
water, the bed of which is owned privately.” 74 Mont. at 596-97, 241 P. at 331.
¶118 Kennedy argues that our 1984 decisions in Montana Coalition for Stream Access, Inc.
v. Curran, 210 Mont. 38, 682 P.2d 163 (1984), and Montana Coalition for Stream Access,
Inc. v. Hildreth, 211 Mont. 29, 684 P.2d 1088 (1984), effectively overruled Herrin—a point
that the State of Montana, which has intervened in this appeal, concedes—and thereby
divested landowners of a valuable property right, namely, the right to exclude the public
from the waters above privately owned streambeds.11 In Curran, the Court held that a
11
See College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,
673, 119 S. Ct. 2219, 2224 (1999) (“The hallmark of a protected property interest is the right to
63
landowner has no right to control the use of the surface waters of a stream flowing through
his property to the exclusion of the public, except to the extent of his prior appropriation of
part of the water for irrigation purposes. 210 Mont. at 52, 682 P.2d at 170. The Court
further held that “any surface waters that are capable of recreational use may be so used by
the public without regard to streambed ownership or navigability for nonrecreational
purposes.” Curran, 210 Mont. at 53, 682 P.2d at 171. The Court supplemented this holding
in Hildreth to include “the bed and banks up to the ordinary high water mark.” 211 Mont. at
35-36, 684 P.2d at 1091. The Legislature codified these holdings in 1985. See
§§ 23-2-301(12), -302(1), MCA.
¶119 Citing Stop the Beach Renourishment, Inc. v. Florida Department of Environmental
Protection, 560 U.S. 702, 130 S. Ct. 2592 (2010), Kennedy contends that our decisions in
Curran and Hildreth effected an unconstitutional judicial taking of property without just
compensation. Citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102
S. Ct. 3164 (1982), he contends that the enactment of statutes based on Curran and Hildreth
amounted to an unconstitutional legislative taking of property. The State responds that these
“claims” are barred by the statute of limitations. The State cites § 27-2-207, MCA, which
prescribes a limitation on “the commencement of an action” for injury to property. Yet,
Kennedy has not commenced an action for injury to property. He has no cross-claims or
counterclaims pending. He asserts no claims for damages due to a taking or inverse
condemnation of property. He states that he is asserting his takings argument as a defense to
exclude others.”); Kafka v. Mont. Dept. of Fish, Wildlife & Parks, 2008 MT 460, ¶ 51, 348 Mont. 80,
201 P.3d 8 (“the most significant of all the indicia [of property is] . . . the right to exclude”).
64
PLAA’s claim that the public has the right to cross his land in order to access and use Ruby
River. As we have recognized, “statutes of limitations . . . [are] limitations on actions only
and not of defense.” Hagerty v. Hall, 135 Mont. 276, 280, 340 P.2d 147, 149 (1959). Thus,
I believe the State’s procedural argument is misplaced.
¶120 Nevertheless, the judicial and legislative takings alleged by Kennedy occurred in 1984
and 1985, when the right of landowners to exclude the public from the waters over privately
owned streambeds, recognized 59 years earlier in Herrin, was changed by our decisions in
Curran and Hildreth and the ensuing statutes enacted by the Legislature. Kennedy did not
own the Ruby River streambed in 1984 or 1985, and thus nothing was taken from him.
When he purchased his property in 1993, Curran and Hildreth were the law of this State, and
he thus acquired no right to exclude the public from using Ruby River during anytime when
he has owned his property. Simply acknowledging, in the context of the present lawsuit, the
rights held by the public under Curran and Hildreth does not effect any taking of Kennedy’s
property.
CONCLUSION
¶121 “[S]ignificant controversy has existed related to public access to streams and rivers
from county road and bridge rights-of-way.” Laws of Montana, 2009, ch. 201, preamble to
House Bill 190. In 2007 and 2008, “a group of stakeholders met to address the controversy
and agreed in principle that a legislative solution was preferable.” Laws of Montana, 2009,
ch. 201, preamble to House Bill 190. That legislative solution took the form of House Bill
190, which the Legislature passed in 2009. Nearly every member of the 2009 Legislature
voted in favor of the bill; the final vote was 96 to 3 in the House and 48 to 2 in the Senate.
65
The bill struck a balance, allowing the public to gain access to surface waters for recreational
use at public bridges and county road rights-of-way, while allowing landowners to run their
fences up to the edge of the bridge as long as the fences did not prevent public passage to
surface waters. The bill expressly excluded a certain category of public roads from its
application: those established by prescriptive use.
¶122 With today’s decision, this Court nullifies the exclusion of prescriptive easements
from the 2009 legislation and alters the balance struck by the Legislature. We do so by
ignoring a century of precedent recognizing that the public may obtain a prescriptive
easement over only the land which the public adversely possessed—confined to the way
actually occupied during the prescriptive period—and that the incidental right of support and
maintenance extends to only the adjacent land that is reasonably necessary for these purposes
and must be exercised in such a way as not to needlessly increase the burden on the servient
estate. The Court effectively grants a public prescriptive easement where the Legislature has
determined none should exist. I believe the Court’s decision lacks any support in precedent
and embroils this Court in a controversy that we are not properly suited to resolve. I would
apply our well-settled principles of prescriptive easements and hold that PLAA has failed to
establish a public right of passage from Seyler Lane to Ruby River.
¶123 I dissent from the Court’s decision to the contrary.
/S/ LAURIE McKINNON
Justice Jim Rice, concurring in part and dissenting in part.
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¶124 Much has already been said in the preceding opinions, and I am loath to contribute to
the complexity of the case, but I believe the Court’s easement analysis is fundamentally
flawed and that easement law will be significantly reordered by the Opinion in a manner
inconsistent with longstanding principles.
¶125 Citing only to foreign authority, the Court states that “the general rule” is 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.” Opinion, ¶ 25 (emphasis added).
The Court further holds that “the 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.” Opinion, ¶ 30 (emphasis added); see also ¶ 26. I disagree that
the width or area of an easement is so determined. The width of a roadway easement
obtained by prescription, as the Court notes but does not enforce, is “‘determined as a
question of fact by the character and extent of its use . . . .’” Opinion, ¶ 28 (quoting
Portmann, 149 Mont. at 95, 423 P.2d at 58 (emphasis added)). As Portmann further
explains about public highway prescription cases, “‘the public may obtain title by adverse
possession of that only which it has occupied during the full statutory period.’” Portmann,
149 Mont. at 95, 423 P.2d at 58 (citation omitted) (emphasis added). The precise area of a
public prescriptive easement is that which the public used or occupied during the prescriptive
period, as determined by the evidence. This is the law of Montana, consistent with the
statutory directive that the “extent of a servitude is determined by . . . the nature of the
enjoyment by which it was acquired.” Section 70-17-106, MCA.
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¶126 Then, “‘[w]hen an easement or other property right is created, every right necessary
for its enjoyment is included by implication.’” Mattson v. Mont. Power Co., 2009 MT 286,
¶ 37, 352 Mont. 212, 215 P.3d 675 (citation omitted). As the Court notes, a public road
obtained by prescriptive use “contemplates the general public’s use” of additional area
necessary for “repairs and maintenance.” Opinion, ¶ 24. This is so, because in addition to
the easement itself, those “necessary incidents” without which the easement cannot be
enjoyed must accompany the easement. “The right to enter upon the servient tenement for
the purpose of repairing or renewing an artificial structure constituting an easement, is called
a ‘secondary easement,’ a mere incident of the easement that passes by express or implied
grant or is acquired by prescription.” Sharon v. Hayden, 246 Mont. 186, 190, 803 P.2d 1083,
1086 (1990) (citation omitted). About necessary incidents, we have likewise explained that
“[t]hese rights are in the nature of a ‘secondary easement,’ i.e., ‘[a]n easement that is
appurtenant to the primary or actual easement; the right to do things that are necessary to
fully enjoy the easement itself.’” Mattson, ¶ 37 (citing Black’s Law Dictionary 587 (Bryan
A. Garner ed., 9th ed., West 2009)). Although the Court eschews the term “secondary
easement,” this has long been fundamental easement law, as explained in ¶ 109 of Justice
McKinnon’s dissenting opinion.
¶127 However, the Court has departed from these principles and has instead created a new
“super easement,” or what is denominates as a “single, unified, public road right-of-way,”
Opinion, ¶ 32, wherein the necessary incidents of the easement’s enjoyment, and the area
associated with the necessary incidents, become part of the easement width itself—
expanding the area of the easement beyond that actually acquired by the public’s use or
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occupancy. See Opinion, ¶¶ 26, 32. It cites inapplicable statutes as authority for doing so, as
noted by Justice McKinnon. Dissent, ¶ 95. The error here is that the necessary incidents are
of a different character than the acquired easement, and do not merge with it. The incidents
are not part of “[t]he extent of a servitude” because they are not “the nature of the enjoyment
by which it was acquired.” Section 70-17-106, MCA. They are acquired only “‘by
implication.’” Mattson, ¶ 37 (citation omitted). “Of course, nothing passes by implication as
incidental to the grant of an easement except that which is reasonably necessary to its fair
enjoyment.” Mattson, ¶ 37. Incidents, as an implied interest, cannot merge with an
easement because they are subject to change, both expansion and contraction, depending
upon the circumstances that are necessary for the easement’s enjoyment.
¶128 Nonetheless, the Court declares the additional area or width accommodating the
incidents of a publicly acquired prescriptive easement has the character of the easement
itself, such that all other “uses that are reasonably foreseeable” may be made, Opinion, ¶ 51,
and that “all uses that are permissible to the public under the laws of this state are
permissible uses,” Opinion, ¶ 47 (citing Lovvorn, 701 P.2d at 144). The Court thus uses
authority standing for the proposition that a publicly acquired prescriptive easement can be
used for all public purposes, and then extends that proposition to any area necessary for the
implied incidents as well, opening the entirety of the area that is incidentally necessary for
the easement’s use to full public enjoyment of “all uses that are permissible.” Opinion, ¶ 47.
I believe this is a sweeping departure from established law and agree with ¶ 100 of Justice
McKinnon’s dissent in this regard. If the area incidentally necessary can be so used, then, as
Kennedy argues, “the easement could be expanded forever” because an additional area will
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always be incidentally necessary for use of the primary area. If “[f]oot travel over . . .
embankments and abutments” is reasonably foreseeable, as the Court posits, Opinion, ¶ 52, I
surmise that most any other use would be as well. I dissent from this holding under Issue 1,
and to those portions of Issue 3 expanding the necessary incidents of an easement to other
uses and enjoyment.
¶129 I agree with the Court that recreational use should likewise be considered in
determining the area of the easement that was acquired by the public. I join the Court in
remanding for consideration of that evidence under Issue 2, but I would limit that remand to
the easement principles discussed above. Because Seyler Lane is a public road acquired by
prescription, and PLAA’s claim is based upon prescriptive use, the issue on remand—“the
scope of a public road right-of-way established by prescripti[on],” Opinion, ¶ 51—
necessarily requires application of these principles. I join the Court on Issues 4 and 5.
/S/ JIM RICE
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