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IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 319
THOMAS GALASSI, LESLIE GALASSI, P.C. LELLO
GALASSI, NATHAN GALASSI, MICHAEL C. GALASSI,
LANCE E. GALASSI, RHONDA F. GIARDINA, and
Plaintiffs and Appellants,
LINCOLN COUNTY BOARD OF COMMISSIONERS, and
WHISPERING PINES RECREATIONAL LANDOWNERS’
Defendants and Respondents.
District Court of the Nineteenth Judicial District,
In and for the County of Lincoln, Cause No. DV-01-55,
The Honorable Michael C. Prezeau, Judge presiding.
COUNSEL OF RECORD:
Peter W. LaPanne, LaPanne Law Firm, Missoula, Montana
For Respondent Lincoln County:
Bernard G. Cassidy, Lincoln County Attorney, Libby, Montana
For Respondent Whispering Pines Recreational Landowners Association, Inc.:
Amy N. Guth, Attorney at Law, Libby, Montana
Submitted on Briefs: May 1, 2003
Decided: November 24, 2003
Justice Jim Regnier delivered the Opinion of the Court.
Thomas Galassi and others (collectively Galassis) appeal from Findings of Fact,
Conclusions of Law and Judgment entered by the Nineteenth Judicial District Court, Lincoln
County, finding for the Lincoln County Board of Commissioners and Whispering Pines
Recreational Landowners’ Association, Inc., in a quiet title action. We affirm.
The Galassis are descendants of Carlo and Winifred Galassi, who, along with Ron
Thornberry, in 1964 purchased a 40-acre parcel of real property in north Lincoln County
near Fortine. Thomas Galassi acquired an interest in the property from his father, Carlo, and
subsequently moved his family there in 1995. The 40-acre parcel was never developed prior
to Thomas’ occupation. The Galassis’ property is completely surrounded by the Whispering
Pines Subdivision (Subdivision) which was developed in the early 1970's.
The Subdivision consists of approximately 127 five-acre parcels and includes
numerous roads throughout providing access to the individual lots. Whitetail Meadow Road,
the road at issue in this case, traverses the Galassi property from north to south and provides
the only year round access to several lots within the Subdivision as well as United States
National Forest land.
In 1996, the Lincoln County Commissioners notified the Galassis that Whitetail
Meadow Road was a county road known as RP 81. On January 28, 1999, the Galassis
petitioned Lincoln County to abandon Whitetail Meadow Road as a county road. When the
County refused to abandon the road, the Galassis initiated this quiet title action, including
a claim for injunctive relief seeking to bar public access to that part of the road that crosses
On September 25, 2001, the Nineteenth Judicial District Court, Lincoln County,
denied the claim for injunctive relief and on July 25, 2002, the District Court held a non-jury
trial to determine whether Whitetail Meadow Road was private property or a county road.
On July 29, 2002, the District Court issued it Findings of Fact, Conclusions of Law and
Judgment determining that Whitetail Meadow Road was a public county road.
The District Court relied on extensive evidence in reaching its conclusion that
Whitetail Meadow Road and RP 81 were one and the same; namely, the petition and
associated documents filed with the Lincoln County Clerk and Recorder in 1914 and 1915;
the testimony of numerous persons familiar with the history of the area and road in question;
and the fact that the road, as a whole, comported with the legal description as described in
STANDARD OF REVIEW
The standard of review of a district court's findings of fact is whether the findings are
clearly erroneous. Wareing v. Schreckendgust (1996), 280 Mont. 196, 202-03, 930 P.2d 37,
41. This Court has adopted a three-part test to determine whether a finding is clearly
erroneous. First, we must determine if the findings are supported by substantial evidence.
If so, we then determine if the district court misapprehended the evidence. Finally, if the
findings are supported by substantial evidence and that evidence has not been
misapprehended, this Court may still determine whether “a finding is 'clearly erroneous'
when . . . a review of the record leaves the court with the definite and firm conviction that
a mistake has been committed.” Daines v. Knight (1995), 269 Mont. 320, 325, 888 P.2d
904, 906 (citing Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820
P.2d 1285, 1287). Finally, we review a district court's conclusions of law for correctness.
Dambrowski v. Champion Intern. Corp., 2003 MT 233, ¶ 6, 317 Mont. 218, ¶ 6, 76 P.3d
1080, ¶ 6.
The sole issue in this appeal is whether the District Court erred in concluding that
Whitetail Meadow Road is a dedicated county road.
The Galassis make several arguments in support of their position that the District
Court erred in its decision. First, they maintain that the 1914 legal description of RP 81 was
vague and ill defined and thus does not depict what is now known as Whitetail Meadow
Road. Additionally, they assert that Whitetail Meadow Road does not appear in the Lincoln
County Tract Book, therefore, it could not conclusively be RP 81. Next, the Galassis
contend that Lincoln County did not maintain Whitetail Meadow Road and the road was
never upgraded to county specifications. They also maintain that landowners in Section 6
considered the road to be private. Finally, the Galassis allege that the Subdivision considered
all of the roadways in Section 6 to be private and did not include the stretch of Whitetail
Meadow Road that crosses their property on any of the subdivision maps.
In contrast, Lincoln County asserts that there is substantial evidence to establish that
RP 81 and Whitetail Meadow Road are one and the same. As a preliminary matter, the
County maintains that the correct statutory procedure was followed in the formation of RP
81, and therefore Lincoln County properly declared in 1915 that the road was public. The
County next points to the testimony of three witnesses: Mr. Pat Hume, Mr. Larry Curtiss and
Mr. Ken McKenzie. Hume testified that his family moved to this area in 1926, and he
recalled the road being used at that time to haul lumber. He pointed out that the road
provided school access from 1943-1946, was the only road there for a long time and
followed the same course as set forth in the description of RP 81. Similarly, Curtiss recalled
using the road as early as 1929 and described the road as part of RP 81. McKenzie testified
that his family had lived in the area for over seventy years and recalled Whitetail Meadow
Road as long as he could remember.
He was fifty-one years old at time of trial.
Additionally, Kyle Karstens, a title examiner and expert for the plaintiffs, testified that the
road ran generally in a southwest direction, and the legal description of RP 81 was consistent
with other legal descriptions written in the early 1900's. Relying on Reid v. Park County
(1981), 192 Mont. 231, 627 P.2d 1210, the County claims that the record taken as a whole
indicates that RP 81 is a public road and that it is the road known as Whitetail Meadow
The Subdivision also responded to the Galassis' claims. It disputes the plaintiffs'
claims that the legal description is inadequate or ill defined, pointing out that the road
petition describes the road with sufficient particularity, and it identifies the point of
beginning and end, the direction of travel and refers to natural markers. In response to
Galassis' assertion that there has been no public maintenance of RP 81/Whitetail Meadow
Road, the Subdivision points out that the appellants presented no legal authority to support
their claim that lack of maintenance results in a finding that the road is private. Additionally,
the Subdivision asserts that the Galassis misstate the record when they say Whitetail
Meadow Road is not depicted in the County Tract Book and that Section 6 landowners
consider all the roads as private. The Subdivision provides record cites to the contrary.
After a review of the record, we conclude that the District Court correctly decided this
case and are convinced that the District Court properly determined that the road was
proposed, viewed, constructed and dedicated in substantial compliance with the laws then
in existence governing the creation of county roads. We are particularly mindful that our
holding in Reid abandoned strict compliance to the road-creating statutes in effect in 1895.
We held “that it 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.” Reid, 192 Mont. at 236, 627 P.2d
In Reid, we reviewed the road-creating statutes in existence at the time the Lincoln
County Commissioners approved RP 81. See Reid, 192 Mont. at 234-35, 627 P.2d at 121213. We said that the statutes required submission of a petition by landowners, appointment
of road viewers, and an order opening the road for travel by the public. Reid, 192 Mont. at
235, 627 P.2d at 1213. These requirements have been substantially met. For instance, here
the legal description articulates a definite start point and an end point, prescribes a direction
of travel as it meanders through Section 32 and 6 toward Section 7, and identifies a creek,
Meadow Creek, to which the roadway runs adjacent. The 1915 minutes clearly indicate that
the Commissioners declared RP 81 a public highway.
Furthermore, both the Galassis’ expert, Kyle Karstens, and Bill Bischoff, Executive
Assistant for the Board of Lincoln County Commissioners, testified that RP 81's legal
description is consistent with other legal descriptions of that era. Bischoff also testified to
the process by which a road became a public roadway in 1915, stating that the process by
which RP 81 became a public road conformed to the statutory requirements at that time.
Regarding Galassis' contention that Lincoln County never maintained the road as a
public county road, and therefore, it was not a public roadway, we agree with the
respondents. The appellants have offered no legal authority suggesting failure to maintain
a public county road means a road is not public. Furthermore, once a road is established as
a public roadway, as it has been here, a county must take affirmative steps to indicate
intention to abandon such road. McCauley v. Thompson-Nistler, 2000 MT 215, ¶ 31, 301
Mont. 81, ¶ 31, 10 P.3d 794, ¶ 31. There is no record of abandonment.
Galassis attempt to present evidence that the road is private, such as the property
owners within Section 6 thinking the roads were private; the Subdivision developers
assuming the roads were private; the County allowing gates to remain across roadways; and
posting of private property and private road signs along the roadway in question. Both
respondents identify evidence in the record to the contrary. We said in Jefferson v.
McCauley Ranches, 1999 MT 333, ¶ 31, 297 Mont. 392, ¶ 31, 994 P.2d 11, ¶ 31, even if
there is contradictory evidence, we will uphold the district court if there is substantial
credible evidence to support its findings. We conclude that there was substantial evidence
presented to the District Court to support its finding that RP 81 is a public roadway.
There remains the Galassis’ contention that RP 81 is not the same road as the
Whitetail Meadow Road. The Subdivision and the County presented persuasive evidence
from witnesses who testified that they were familiar with the area all their lives and at one
time or another lived on this road. Pat Hume testified that the road in question, now known
as Whitetail Meadow Road, existed in 1926 when his family moved to the area. The road
ran along Meadow Creek to the Fergusons’ Place, and he frequently walked down it as a boy
towards the Day Homestead to access the creek to fish. RP 81's legal description states that
the road “run[s] in a westerly direction up the Meadow Creek . . . to the NE 1/4 of the N/E
sec. 6 . . . then southwest to sec. 7 to P.C. Ferguson’s Place.” While he could not pinpoint
the exact location of the Fergusons’ Place, he indicated that he knew it was generally along
the road that he walked numerous times to fish as a boy. Larry Curtiss testified that in 1946,
he bought property just north of the Day Homestead at the end of Whitetail Meadow Road.
He first recounts traveling along this road between 1929 and 1931 to cut cedar for shakes.
Bill Bischoff testified that roads were built close to a creek bottom at the turn of the
century (early 1900's) and homes or residences were built near water, usually creeks. He
further testified that this information, coupled with other factors contributed to the County’s
determination that RP 81 was Whitetail Meadow Road. Ken McKenzie, a fifty-one year old
whose family has owned property on this road for almost seventy years, testified that
Whitetail Meadow Road has been in existence for as long as he can remember.
In applying Reid to the facts in this case, we conclude that the record as a whole
shows that RP 81, in fact, is a public road. Moreover, we hold the testimony offered by all
the parties supports the conclusion of the District Court that RP 81 and Whitetail Meadow
Road are one and the same. For the forgoing reasons, we affirm the judgment of the District
/S/ JIM REGNIER
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE