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Illegal Road ClosuresFighting Back
Road closures have become a major problem in Montana. There are a variety of reasons for these closures including the desire to control public land and wildlife for profit or personsl use. If you become aware of a closure, you should contact the county commissioners in that county and request an opinion as to why they are allowing the road to remain closed. If you do this by letter you might include the following summary of a Montana Supreme Court decision. If the road in question is similar to the one in this case, ask why the commissioners are allowing the closure.
McClurg vs. Flathead County commissioners 188Mont. 20,610P.2d 1153 (1980) The supreme Court held that “adverse control” is presumed when all other elements necessary for a prescriptive easement have been established. In McClurg the public had used the road in a continuous and uninterrupted way for over 25 years without objection by the McClurgs. Mc Clurgs sought unsuccessfully to close the road to public use. The undisputed facts supported rather than rebutted the presumption of adverse use. For example, most members of the public never asked permission to use the road, and the county graded and maintained the road and laid gravel on the road without Mc Clurg‘s permission.
Mc Clurg was distinguished from Leffengwell Ranch Inc.vs Cieri 276 Mont. 421 916 P.2d 751 (1996) where road work was based on courtesy and cooperation with local ranchers and not PUBLIC DUTY.
Ask why the closed road is any diffrent from the one in this case. Remind the commissioners of the last line in that decision that identifies the opening and maintenance of such a road as a PUBLIC DUTY. It is illegal to spend public funds on a road that is not open the public.
There are too many road closures going unchallenged by commissioners because they are reluctant to face a possible lawsuit. Remind the commissioners that the Attorney General of Montana will assist in any challenge to an illegal closure. All they have to do is ask.
Don't give up because they tell you some story about a side pocket agreement with the landowner. Ask to see the agreement in writing. Sometime pressure in the form of letters to the editor in the local newspaper will work to your advantage.
Sunny Hill Rd. Closure Sheridan County