Montana Attorney General Opinion 15-97

Opinion No. 97 County Commissioners - Highway - Right-of -Way. HELD: The Board of County Com- missioners is ,,;tllOut power to pur- chase a right of way for a common highway unless so petitioned by ten or a majority of the freeholders of a road distl'ict who are taxable therein for road purposes. :\Iarch 3, 1!)33. You inquired whether or not the Roard of County Commissioners could purchase a right of way for highway purposes without such a petition as Sections 16.35 and 1636, Revised Codes 1fl21, require heing presented to it. Public highways in this state are classed as common highways, main highways and state highways. All highway~, which are not established or improved in the manner provided for state highways, shall be common or public highways. Common or public highways shall be such as are estab- lished or improved in the manner pro- \'ided by Sections 1U35-1651, R. C. M. 1fl21. (Section 1G13, Rel'ised Codes 1921.) Assuming, as we may, that the right of way in mind has to do with a com- mon highway it is our view that a pe- tition such as is demanded hy Sections 16.'15 and 1636, supra, is essential be- fore the board can proceed. The board of county commissioners of a county is without power on its own initiative to establish, alter or discontinue an~' com- IlIon highway even when deemed nec- essary. (State ex reI. :\lcl\1aster v. District Court, 80 ~lont. 228; l!"'lynn Y. BeaYerhead County, 54 :\Iont. 309.) The authority granted to the board of county commissioners as amended Sections '1622 and 4465, Hevised Codes of 1!)21. must be exercised in the man- ner and under the circumstances point- ed out bv Sections 16::15-1651. supra. and not ~therwise. (State v. District Court, aboye.)