Developments on Mabee Road Case
The Fergus County Commissioners are still refusing to acknowledge that the Maybee road is a public road! We believe this is a serious abdication of their duty as public officials. We also believe the Fergus County Attorney has also abdicated his duties in this regard by allowing the county commissioners to go on with this denial of facts and law.
The Mabee Road runs north from Roy, Montana in Fergus County, and provides sole road access to a large area of the Missouri Breaks National Monument and the CMR Wildlife Refuge. The road status is presently in legal limbo after a lock was put on a gate in 2007 by an adjacent landowner/ outfitter who asserts the road is private, not public.
In 2009 PLWA prepared a presentation of the public records that show without question that the road existed prior to any homestead patents being issued in the vicinity, and is therefore an “RS2477” public road. The Fergus County Attorney gave a copy of our information to the landowner’s attorney who responded in an eight page document that argues the road is not an RS – 2477.
In early 2010 the Fergus County Attorney advised they County Commissioners stating that “I believe it would be a mistake for the Board of Commissioners to support one position or the other in these situations”. We believe this is an abdication of the duty of the Commissioners.
Since that time significant additional evidence was discovered and submitted to the commissioners. It included maps and other information that reflects the road has existed in approximately the same location since 1913 along with a copy of patent files from the National Archives in Washington D.C., and a copy of the letter submitted by the former owner of the property, Mr. Fink, stating in 2000 that the Mabee Road had provided access to the area for 90 years without anyone asking permission. The original patent files state that when filled out, November 16, 1920, the applicant, Leonard Ellis filled in the blank under Rights of Way as “Designated”. It is safe to assume that the only place he could have found this information was in the County Courthouse, the same place we found the plat of the surveyed road in 2009.
(We also included copies of the Perkins Gulch court decisions – both District Court and Montana Supreme Court, The Perkins Gulch case in Deer Lodge County, affirmed by the Supreme Court in January 2010, ruled that a road with very similar conditions to the Mabee Road was in fact, a public road. See PLWA website for details.)
This additional evidence supports the case for a Prescriptive Easement as well as RS 2477 status. (See PLWA website for definitions.)
We submitted this additional evidence to the Fergus County Attorney and Commissioners in mid 2010 and requested they reaffirm that the Mabee Road has been, and is now a public road. (We also sent copies of our evidence to Attorney General Steve Bullock’s office in Helena. ) As of October 2010 the position of the commissioners is that they are not going to act on our new evidence as submitted. Again, we feel this is a further abdication of their responsibility.
If you know of persons who traveled the road anytime from 1913 to 2007 and not having to ask permission or encountered any locked gates or “Road Closed” signs, please contact any member of PLWA. We may ask you to sign an affidavit to that effect. (An affidavit only states the facts and truths. Anyone signing an affidavit is not putting themselves in any legal jeopardy.) We do not want to litigate this case, but if we do, any evidence of this type is very useful.
If you are a resident of Fergus County demand the commissioners study the evidence we provided and reaffirm that Mabee Road is still a public road.