Montana Attorney General Opinion 15-371

Opinion No. 371 Highways - Public '&lads - Abandon- ment HELD: A road does not cease to be a public highway until formally aban- doned or changed as pro\'ided by law. October 26, 1933 You request an opinion from this office on the following matter: "The question has been brought up by certain residents of Madison Coun- t)' as to whether or not the old coun- ty road may be kept open for the purpose of a stock drh'eway between Harrison and Norris, where Federal Aid Project liI-C is heing construct- ed on new ,alignment, but close enough to' the existing road to replace it for general traffic. It is apparently the custom of abutting property owners to fence up the old road as soon as a State highway is completed, if the old road is not needed as a local traf- fic connection. "The Highway Commission, in ses- 'sion yesterday, directed me to request your office for an opinion as to what procedure would be necessary oli the part of stock men who are interested to maintain these sections of the old '\·(jad open for the purpose of driving stock, thus keeping them off of the trunk highways." Sections 1614 and 1650 R. C. M. 1921 provide the method by which highways are abandoned or vacated, and changed. Said sections are as fOl- lows: "1614. All public highways once established must continue to be pub- lic highways until abandoned hy op- eration of law, or by judgment of a court of competent jurisdiction, or by order of the hoard of county commis- sioners of the county in which they are situated; but no order to abandon any highway shall be valid unless preceded by due notice and hearing as provided in this act; and no state highway can be abandoned except on' the joint order of the board of county commissioners aIHI the state highway commission." "1650. Upon petition signed by a majorit)' of the freeholders or owners residing upon any common highway, or portion thereof, petitioning that such highway or a portion thereof be so changed as to run on suhdiyision or section lines, the board of county commissioners must proceed to inves- tigate the same, to all intents and purposes as though it were a petition to establish, change, or discontinue any common highway, as such pro- ceedings are provided for in this chap- ter, and after such investigation or hearing, may make such change; provided, it can be done without ma- terial damage, injury, or serious in- com'enience to the public customarily using such highway or portion there- of; provided, further, that those pe- titioning for such change shall bear all or such portion of the cost and ex- pense thereof as the countv commis- sioners may order." • Hection 1614 is specific on the meth- od in which highways lhay be aban- doned. Section 1650 is equall~' specific on the course to be pursued in chang- ing a highway. If the right of way of the old road to which you refer was not used in construction of Federal Aid Project liI-C, it is our opinion that the old road will remain a highway until abandoned or changed in one or the other ways provided by the statntes quoted above. If the old road right of way has been lost by anything the Highway Commission has done in con- structing the new, then to re-establish the old road as a public highway, the matter would have to be presented to the Board of County Commissioners as provided by statute for the estab- lishment ~f a new road.