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.~ 91-062
No.-. .----
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

RALPH BAERTSCH; TERRY A. BROWNE and SUSAN G. BROWNE, husband
and wife; INGRAM-CLEVENGER, INC., a Montana corporation;
NORMA J. ANDRIOLO; CLINTON H. JENKS and VICTORIA J. JENKS,
husband and wife; GEORGE RANDALL FRASER and MARY E. FRASER,
husband and wife; GERALD VERN EVANS and WONE J. EVANS,
husband and wife; GEORGE A. ALGARD and SUSAN E. ALGARD,
husband and wife; HAROLD F. CRANMER and JANET CRANMER,
husband and wife; CHARLES J. KASSNER; CARL SAMUEL PEIL and
PAMELA A. PEIL, husband and wife; FORREST A. BAERTSCH;
McHUGH LAND & LIVESTOCK CO., a Montana corporation;
PETER J. McHUGH, JR. and MARY J. McHUGH, husband and wife;
DAVID B. HAHN and CAROL W. HAHN, husband and wife,

Plaintiffs and Appellants,

COUNTY OF LEWIS AND CLARK, a political subdivision of the
State of Montana, and all other persons unknown, claiming or
who might claim any right, title, estate or interest in, or
lien or encumbrance upon, the real property described in the
Complaint, or any thereof, adverse to plaintiffsp ownership,
or any cloud upon plaintiffsp title thereto, whether such claim
or possible claim be present or contingent, including any claim
or possible claim of dower, inchoate or accrued,

Defendant and Respondent.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

R. J. ppJimpp

Sewell, Jr., Lewis Smith,
Smith Law Firm, Helena, Montana

For Respondent:

Michael McGrath, Lewis and Clark County
Attorney, K. Paul Stahl, Deputy County
Attorney, Helena, Montana

Submitted on Briefs: May 14, 1992

DEC 3 0 1992 i pi Decided: December 30, 1992
Justice William E. Hunt, Sr., delivered the opinion of the Court.

This is an appeal from the judgment of the District Court of
the First Judicial District, Lewis and Clark County. Plaintiffs,
a group of landowners owning property adjacent to McHugh Drive near
Helena (landowners), brought suit against defendant Lewis and Clark
County (County) over a dispute regarding the right-of-way to McHugh
Drive. The County claims a 100-foot right-of-way easement for
McHugh Drive. The landowners contend, based on various legal
theories, that the right-of-way is considerably less than 100 feet.
The District Court found in favor of the County under all arguments
presented by the landowners, with the exception of the landowners'
argument based on res judicata. However, not all of the landowners
prevailed under the District Court's application of the doctrine of
res judicata. The landowners appeal from the judgment of the
District Court. We affirm.

The landowners present the following issues for consideration
by this Court:

1.
Did the District Court err in determining that the 1890
conveyances granting the County a 100-foot right-of-way were
properly recorded so as to impart constructive notice of their
contents to the general public?


2.
Did the District Court err in determining that the
original dedication of the 100-foot right-of-way in 1890 was done
in accordance with the proper statutory procedure?


3.
Did the District Court err in determining that the County
had not abandoned the disputed portion of the right-of-way?


4.
Did the District Court err in determining that the
landowners, through their predecessors in interest, did not acquire



ownership of the disputed portion of the right-of-way by adverse
possession?

5.
Did the District Court err in determining that the
County's claim to the disputed right-of-way was not barred by the
doctrine of equitable estoppel?


6.
Did the District Court err in determining that the
doctrine of res judicata did not bar the County's claim to the
disputed right-of-way as to some of the landowners?



The landowners' appeal presently before this Court is the
latest development in what has been a lengthy dispute between the

parties over the right-of-way to McHugh Drive. The relevant facts
of this case have previously been set out in two prior decisions of
this Court. The first decision in this matter was Ingram-
Clevenger, Inc. v. Lewis and Clark County (1981), 194 Mont. 43, 636
P.2d 1372. In Insram-Clevenser, we set out the factual and

procedural history of the case stating that:

McHugh Lane (or Drive) is a county road running
north-south through the Helena Valley. In 1890, Lewis
and Clark County was granted a 100-foot right-of-way to
establish the road.

On June 6, 1980, plaintiffs presented the board of
county commissioners with a petition signed by every
landowner owning property adjacent to McHugh Lane. The
petition requested that the County abandon forty feet of
the McHugh Lane right-of-way (twenty feet on each side).
The petition was discussed at a regularly scheduled and
noticed hearing of the Lewis and Clark County
Commissioners on July 22, 1980. At this time, the
commissioners found the petition to be in proper form
required under section 7-14-2602, MCA, a finding

reiterated in defendant's brief. The commissioners
denied the petition.

On August 22, 1980, plaintiffs filed suit, seeking
a peremptory writ of mandamus against Lewis and Clark
County, the board of county commissioners and the three
county commissioners. Oral argument as tothe applicable
law was heard on September 3, 1980. Briefs were
submitted at the District Court judge's request. On
October 20, 1980, the District Court issued its order and
opinion, granting plaintiffs' writ of mandate and
directing the board of county commissioners to forthwith
grant the petition to partially abandon McHugh Lane.

Inaram-Clevenaer, 636 P.2d at 1373.

The County brought an appeal from the District Court's order
granting plaintiffs' writ of mandamus. In Inaram-Clevenaer, for
reasons not important to the present appeal, this Court vacated the
order of the District Court, finding that mandamus did not lie.

Following this Court's decision in Inaram-Clevenaer, the
plaintiffs brought an action on April 29, 1982, for declaration
that they had obtained title to the disputed portion of the
100-foot right-of-way. The issues raised in that suit are
essentially the same issues raised on this appeal. The County
raised the defense of res judicata to the plaintiffs' action,
alleging that this Court's decision in Inaram-Clevenaer barred the
plaintiffs' action. The District Court agreed. Following a bench
trial the District Court dismissed the landownersf complaint, and
quieted title in the County to the 100-foot right-of-way. The
landowners brought an appeal from the judgment of the District
Court, and in Baertsch v. County of Lewis and Clark (1986), 223
Mont. 206, 727 P.2d 504, this Court reversed the judgment of the
District Court. In Baertsch, we stated that:

We conclude that the issues in the two cases are not
the same. In Incrram-Clevencrer the request of the
landowners was for the vacation of a portion of McHugh
Drive under the statutory authority granted to the County
Commissioners. The title or ownership to the Drive was
not in any manner involved in that proceeding. In
contrast, the essential claims in the present case are
issues relating to the title to the McHugh Drive roadway
itself. Such issues could not have been properly
presented as a part of the proceeding for vacation of
McHugh Drive. The Board of County Commissioners has no
authority to adjudicate title.

Baertsch, 727 P.2d at 506-07.

In Baertsch, we determined that the plaintiffst action was not
barred by the doctrine of res judicata and remanded for trial of
the issues on the merits. Upon remand, the parties agreed to
submit the matter to the District Court for a decision on the
merits of landownerst allegations based on briefs, oral argument,
and the prior trial record. Oral argument was held on May 3, 1990.
The parties were given 30 days to file findings at which time the
matter would be deemed submitted for decision. On November 16,
1990, the District Court filed lengthy and detailed findings of
fact, conclusions of law, and order in this matter. The District
Court found in favor of the County under all legal theories raised
by landowners, with the exception that certain of the landowners
prevailed on the theory of res judicata. Landowners brought this
appeal.

I

Did the District Court err in determining that the 1890
conveyances granting the County a 100-foot right-of-way were

properly recorded so as to impart constructive notice of their
contents to the general public?

The parties disagree as to the appropriate standard of review
to be utilized by this Court in this case. On appeal, this Court
will not set aside factual determinations made by a district court
sitting without a jury unless they are clearly erroneous. Rule
52(a), M.R.Civ.P. Concerning our review of conclusions of law,
this Court will simply determine whether the lower court's
interpretation of the law was correct. We are not bound by the
trial court's conclusions and remain free to reach our own. Schaub

v. Vita Rich Dairy (1989), 236 Mont. 389, 770 P.2d 522.

The petition for Forestvale Road (now McHugh Drive), granted
in 1890 by the county commissioners, was never filed as a
conveyance. Landowners contend that the 1890 documents granting
the disputed right-of-way to the County were not properly recorded
and indexed as conveyances, and therefore, failed to give adequate
notice to the public that the right-of-way was 100 feet. Pursuant
to various sections of the 1887 Compiled Statutes of Montana (CSM)
which governed in 1890, all conveyances that were not recorded and
indexed as required by law were void against any subsequent
purchasers in good faith and for valuable consideration. The
District Court found that the original petition and accompanying
deeds were not recorded or indexed as conveyances.

The County argues that the 1890 documents creating the right-of-way did not have to be recorded and indexed as conveyances. The County contends that 5 1823, CSM (1887), as the
specific statute governing the creation of roads, sets out the only

procedure necessary for the creation of roads. Section 1823, CSM

(1887), provides that:

Whenever a petition shall be presented to the board of county commissioners of any county of this territory praying for a public highway, and the names of all the owners of all the land through which said road is to be laid out, shall be signed thereat, giving the right of way through the lands, and accompanied by a plat of the road, it shall be the duty of the county commissioners, if in their opinion the public good requires it, to declare the same a public highway, and thereu~on the ~lat shall be filed and recorded. and the same shall become a public hiahwav from and after that date. [Emphasis added.]
Landowners contend the filing and recording of the plat as

described in

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