YOU CAN TAKE ACTION
LAWS RELATING TO CLOSING OF MONTANA COUNTY ROADS
Private parties frequently illegally close public roads and backroads leading to public land. Action to open them can require legal action involving esoteric and arcane case law such as public prescriptive easements, or the old RS2477 federal statute. However, sometimes the roads closed are just plain, already established, county roads. If you find one of those, Montana law is very clear and an average citizen should be able to make a case to local authorities to open the road. The responsibility of the counties has been outlined by the Montana legislature. This article provides references to some of the basic applicable Montana statutes.
Don’t be bashful, if you think the law is on your side, demand an answer from the County Commissioners if you think the closure is illegal.
County roads are roads created by County Commission action and usually, but not always, maintained by the county. The county public works department or road department is required to have a record of all county roads. Someone with questions about a specific road should start with the county public works director or road supervisor to check if the road is officially recognized. However, just because they say it isn’t a county road, don’t take that as the final answer. If you do find that a road is in fact a county road, and has been closed, blocked, barricaded, or encroached upon, there are a variety of laws which you can bring to the attention of county commissioners.
All legal references are to the Montana Code Annotated as of 2017 – available online.
First of all, a county road cannot be abandoned arbitrarily by the county. Here is the exact statute:
7-14-2615. Abandonment or vacation of county roads. (1) All county roads once established must continue to be county roads until abandoned or vacated by:
(a) operation of law;
(b) judgment of a court of competent jurisdiction; or
(c) the order of the board.
(2) An order to abandon a county road is not valid unless preceded by notice and public hearing.
(3) The board may not abandon a county road or right-of-way used to provide existing legal access to public land or waters, including access for public recreational use as defined in 23-2-301 and as permitted in 23-2-302, unless another public road or right-of-way provides substantially the same access.
(4) The board may not abandon a county road or right-of-way used to access private land if the access benefits two or more landowners unless all of the landowners agree to the abandonment.
* Pay particular attention to paragraph (3) which says the board may not abandon a county road or right-of-way used to provide existing legal access to public land or waters, including access for public recreational use a unless another public road or right-of-way provides substantially the same access. PLWA had a lot to do with getting that into law.
Second, no party can “encroach” upon or block a county road. Again, the specific statures are set out below. While encroachment is not defined in the statute, clearly a fence or other obstruction in the roadway preventing travel would seem to be an encroachment.
7-14-2134. Removal of highway encroachment. (1) Except as clarified in 23-2-312 and 23-2-313 and except as provided in subsection (4) of this section, if any highway is encroached upon by fence, building, or otherwise, the road supervisor or county surveyor of the district must give notice, orally or in writing, requiring the encroachment to be removed from the highway.
(2) If the encroachment obstructs and prevents the use of the highway for vehicles, the road supervisor or county surveyor shall immediately remove the encroachment.
(3) The board of county commissioners may at any time order the road supervisor or county surveyor to immediately remove any encroachment.
(4) This section does not apply to a fence for livestock control or property management that is in a county road right-of-way and that is attached to or abuts a county road bridge edge, guardrail, or abutment if the fence and bridge appurtenances are not on the roadway, as defined in 61-1-101. Any fence described in this subsection must comply with 23-2-313.
7-14-2135. Notice to remove encroachment. (1) Notice to remove the encroachment immediately, specifying the breadth of the highway and the place and extent of the encroachment, must be given to the occupant or owner of the land or the person owning or causing the encroachment.
(2) Notice must be given in the following manner:
(a) by leaving it at the occupant’s or owner’s place of residence if the person resides in the county; or
(b) by posting it on the encroachment if the person does not reside in the county.
7-14-2136. Penalty for failure to remove encroachment promptly. If the encroachment is not removed immediately or removal is not diligently conducted, the one who causes, owns, or controls the encroachment is liable to a penalty of $10 for each day the same continues.
7-14-2137. Legal actions to remove encroachments or recover costs. (1) (a) If the encroachment is denied, the road supervisor shall commence an action in the proper court to abate the encroachment as a nuisance.
(b) If the road supervisor recovers judgment, the supervisor may have the supervisor’s costs and $10 for each day the nuisance remains after notice.
(2) (a) If the encroachment is not denied and is not removed for 5 days after notice is complete, the road supervisor or county surveyor may remove it at the expense of the owner or occupant of the land or of the person owning or controlling the encroachment.
(b) The supervisor may recover the expense of removal, $10 for each day the encroachment remains after notice, and costs in an action brought for that purpose.
Third, no one can “obstruct” a county road as per 7-14-2133.
7-14-2133. Removal of obstructions on county roads. (1) When a county road becomes obstructed, the board of county commissioners, or the county surveyor if the surveyor is in charge, shall remove the obstruction upon being notified of the obstruction.
(2) This section does not hold the board or any member responsible or liable for anything other than willful, intentional neglect or failure to act.
(3) For the purposes of this section, “obstruction” means an obstacle, such as a rock or a fallen tree, that if not removed would remain in the road indefinitely. The word does not mean snow, ice, or any other obstacle that will melt or dissipate on its own accord.
1/ Presumably, county commissioners could close a road for safety reasons.
2/ In some cases the easement agreed upon by the landowners may indicate a different width than the standard 60 ft width.
3/ Roads should be, and usually are, located on the “right of way”. But there can be disputes about the location of the road. For purposes of the discussion above we assume the road and right-of-way are essentially the same with the understanding that the road is narrower than the right-of- way.