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No. 86-290
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

DANIEL J. O'NEILL, HELEN P. O'NEILL, Plaintiffs and. Appellants,
STATE OF MONTANA, acting by and through THE DEPARTMENT OF HIGHWAYS of the State of Montana,
Defendants and Respondents.
APPEAL FROM: District Court of the Second Judicial District, In and for the County of Silver BOW, The Honorable Robert Boyd, Judge presiding.
COUNSEL OF RECORD: For Appellant: Dunlap & Caughlan; Deirdre Caughlan, Butte, Montana For Respondent: Stephen F. Garrison, Dept. of Highways, Helena, Montana
Submitted on Briefs: Oct. 30, 1986 Decided: February 19, 1987 Filed: FEB19B87
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Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the

Court.

Daniel and Helen O'Neill appeal a Silver Bow County
District Court order granting summary judgment to the
defendant State of Montana. The issues on appeal are:

(1) whether the District Court erred in refusing to consider
an affidavit that appellants submitted at the summary
judgment hearing, and (2) whether the District Court
properly ruled that there was not a "taking" by the State of
a strip of appellants' real property. We affirm.

The appellants own a parcel of land situated at the
intersection of Harrison Avenue and Lowell Avenue in Butte,
Montana. Both streets have been public thoroughfares in the
City of Butte since the early 1900's. Appellants purchased
the real property in question in 1972. The deed which
appellants received for the property in 1972 describes the
lot's eastern boundary as extending to approximately the
center of Harrison Avenue and the lot's southern boundary as
extending to approximately the center of Lowell Avenue.

In 1983, the State widened and improved both Harrison
and Lowell Avenues. The State maintains that Harrison Avenue
has a 100 foot right-of-way, that Lowell Avenue has an 80
foot right-of-way, and that the construction project stayed
within those right-of-ways. In July 1984, the appellants
filed a complaint in Silver Bow County District Court

charging that the State's construction project took strips of
appellants' real property without paying just compensation to
appellants. Appellants sought no compensation for any land
encompassed in the pre-1983 Harrison and Lowell Avenues.

In December 1984, the State filed an answer denying
appellants' allegations and alleging several affirmative
defenses. In September 1985, the State moved for summary
judgment on appellants' complaint. On February 7, 1986, the
court held a hearing on the motion for summary judgment. At
the hearing, appellants presented to the court a brief and an
affidavit in opposition to the motion. The State objected to
consideration of the documents on the basis that they were
untimely filed. The court agreed with the State's objection
and refused to consider the appellants' brief and affidavit.
On February 11, 1986, the court granted the State's motion
for summary judgment. The court ruled that the State had a
prescriptive right to use the disputed land for public
highway purposes. This appeal followed.

The first issue is whether the District Court erred in
refusing to consider appellants' brief and affidavit
presented at the hearing on the motion for summary judgment.
This Court's decision in Marcus Daly Memorial Hospital v.
Borkoski (Mont. 1981), 624 P.2d 997, 38 St.Rep. 322,
addressed a similar issue.

Rules 6(d) and 56(c), M.R.Civ.P., require

the party opposing the motion for summary

judgment, to file opposing affidavits

before the date of the hearing.

(Emphasis in original.) Borkoski, 624 P.2d at 1000. Here, the trial court found, and we agree, that appellants made no showing expressing their reason for the untimely filing. Moreover, appellants' brief on appeal advances no compelling reason for their tardiness. Therefore, as in Borkoski, we find that the trial court did not abuse its discretion in refusing to consider the brief and affidavit .
The second issue is whether the District Court properly
ruled that there was not a "taking" by the State of a strip
of appellants' real property. The State filed a number of
affidavits with the trial court in support of its motion for
summary judgment. Among the affidavits was one sworn to by
Raymond Grant, District Engineering Services Supervisor for
the State Department of Highways. Grant's affidavit states
that, (1) he has reviewed the available public records
concerning Harrison Avenue and the appellants' lot;

(2) Harrison Avenue and its right-of-way are, and have been,
centered on a section line; (3) the roadway surface of
Harrison Avenue has existed in increasing widths since at
least the early 1900's; (4) Harrison Avenue has been a public
road throughout that period; (5) Lowell Avenue intersects
with Harrison Avenue at the section's quarter corner and has

existed in the same location in various roadway widths since
at least the early 1900's; (6) that he has reviewed at least
five official county plats from as early as 1907-1908, all of
which show Harrison Avenue's right-of-way at the disputed
location as extending fifty feet from the section line on
both sides and totalling one hundred feet in width; (7) the
same plats, including the earliest but with one exception,
show Lowell Avenue's right-of-way to be eighty feet in width,
not centered on the section's quarter corner line; (8) the
one exception mentioned in (7) shows the right-of-way as
sixty feet; (9) the 1983 project widening Harrison Avenue,
installing sidewalks, and improving the intersection with
Lowell Avenue stayed within Harrison Avenue's one hundred
foot right-of-way and Lowell Avenue's eighty foot
right-of-way; (10) that the affiant reviewed an official
plat which the county commission had adopted and ordered
filed in March 1921, and which was filed with the county
clerk and recorder in March of that year; (11) that the 1921
plat shows Harrison Avenue as having a one hundred foot
right-of-way; and (12) that it is difficult to determine
much of the history of either avenue due to the age of the
roads and because many relevant records and documents have
been lost or destroyed.

Robert Fischer, a District Utility Agent for the
Highway Department, also submitted an affidavit. In regard

to the Harrison Avenue right-of-way abutting appellants'
property, his affidavit stated that, (1) phone lines have
been located on the right-of-way to within approximately
eleven feet of the State's claimed boundary since 1910;

(2) a water line has been located on the right-of-way since
1914; (3) a sewer line has been located on the right-of-way
to within one foot of the State's claimed boundary since
1971.

Addressing the Lowell Avenue right-of-way abutting
appellants' property, Fischer's affidavit states that, (1)
underground telephone lines have been located to within
sixteen feet of the State's claimed boundary since 1972;

(2) a gas line (since 1943), a sewer line (since 1971) and
telephone lines (since 1973) are all located within the
right-of-way; and (3) that the affiant has no record that
appellants or their predecessors in interest have ever
previously complained to the utility companies about these
utility lines (on Harrison or Lowell Avenues).

Joseph Micheletti, the Highway Department Field
Right-of-way Supervisor, also submitted an affidavit. His
affidavit states, (1) that the Department purchased a small
triangle of property located at the corner of Harrison and
Lowell Avenues, from the appellants; (2) that on January 22,
1982, the appellants signed a deed which clearly showed the
right-of-ways on Harrison and Lowell Avenues as claimed by

the State; and (3) the appellants did not object to the

deed, or right-of-way as shown on the deed, during the

negotiations for that sale.

There is no evidence in the record to support

appellants' contention that the Harrison Avenue right-of-way

and the Lowell Avenue right-of-way are not one hundred feet

and eighty feet, respectively, as claimed by the State.

Appellants did not introduce into evidence any affidavits or

depositions to refute the evidence presented by the State.

In Sheldon v. Flathead County (Mont. 1985), 707 P.2d

540, 542, 42 St.Rep. 1573, 1576, this Court recently

reaffirmed the rule that:

" [i]t is sufficient if the record taken as a whole, shows that a public road was created. Otherwise, the burden on the public in a particular case to prove a public road was created so many years ago may well be unsurmountable. . . . [ilf we did not now overrule Auchard and Warren on the jurisdictional issue, a private landowner may, in a particular case, be able to keep the public from going through land because the public's records of a road no longer support a determination that the public had originally acquired jurisdiction to create the road. " (Quoting Reid v. Park County (Mont. 1981), 627 P.2d 1210, 1213, 38 St.Rep. 631, 634.)
We hold that the record shows that Harrison Avenue and

Lowell Avenue were created with the right-of-ways as claimed

by the State. The 1983 construction project occurred

entirely within those right-of-ways. Thus, there could be no

"taking" by the State. The official plats showing those
right-of-ways, coupled with the utilities' long, continuous
use of the right-of-ways without objection from appellants,
are sufficient to establish the creation of those avenues.
The record in this case is as adequate, if not more so, than
the record in Reid which this Court found sufficient to
establish the creation of a road.

The District Court properly granted summary judgment to
the State. Affirmed.

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Justice,&

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We concur:

Justices

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