Montana Attorney General Opinion 15-160

Opinion No. 160. County Commissioners - Highways - Easements-Ultra. Vires. HFJIJD: The interest which It board of county commissioners is allowed to ohtain in prl\'ate lands for highway purposes is an easement only, and when it assumes to secure a fee simple title for the county it exceeds its pow· ers under the law and is guilty of nn ultra vires act. April 13, 1933. In your statement to us of recent date, it is said that the board of coun· ty commissioners of Missoula County lmrchascd 9.2 acres of land for high· way purposes at a total. cost of $3,· 296.00 and obtained from the owner a deed in fee thereto without the ap- praisal required by subdivision 8 of S'ectiOll 4465 as amended by Chapter i16 OPINIONS OF THE A'l"l'OR:,\EY GENERAL 100, Laws of lU31. The legality of the transaction is questioned by you for that reason and our advice sought. 'l'he board of county commissioners is a specially created tribunal, possess- ing only such authority as is conferred upon it expressly, and such additional authority as is necessarily implied from that which is granted expressly. It is a body of limited powers and must in every instance justify its action by ref- erence to the provisions of law defining and limiting these powers. (Stange v. I~s\"lll, 67 Mont. 301; Yellowstone Pack- ing-&. Provi~ion Co. v. Hays, 83 Mont. 1). ·What authority, then, does the board possess so far as highways are con- cerned? The answer is found in our Codes and Session Laws. It is empow- pred to layout, maintain, control and manage public highways and bridges within the county (subdivision 4 of Section 4465, above) ; to exercise gen- eral supervision over highways within the county (Section 1622, R. C. M. 1!l21, as amended by Chapter 59, Laws of 1929); to cause to be surveyed, Yiewed, laid out, recorded, opened, worked and maintained such highways as are necessary for public convenience (subdh'ision 3, Id.), and to contract, agree for, purchase, or otherwise law- fully acquire the right of way over private property for the use of public highways, and for that purpose insti- tute, when necessary, proceeding under Sections 0033 to !lfJ58 of the Code of Civil Procedure, paying for such right of way from the general road fund of the county. (Subdivision 5, Id.) The authority so granted to procure the right of way must be exercised in the manner and under the circumstances indicated by Sec. 1635-1651, Re\'ised Codes 1921, and not otherwise. (State ex reI, McMaster v. District Court, 80 :\lont. 228). By taking or accepting land for a highway, the public acquires only the right of way and the inci- dents necessary to enjoying and main- taining the same. (Sec. 1616 R. C. M. 1921; Wright v. Austin, 76 Pac. 1023; Gurnsey v. Northern Cal. Power Co., 117 Pac. 006; 29 C. J. 540, 541). It is clear, therefore, from a reading of the highway laws of the state and the decisions of the courts that the in- terest which a board of county com- missioners is allowed to obtain in pri- vate lands for highway purposes is an easement only. When it assumes to secure a fee Simple title for the county, it exceeds its powers under the law and is guilty of an ultra vires act. (Flynn Y. Beaverhead County, 54 Mont. 309). It may be suggested that as the board of county commissioners acquired a fee simple title in this instance it was con- strained to proceed according to the second clause of subdi\'ision 8 of sec- tion 4465 and have three distinterest- ed citizens appointed to appraise the land. But that would he tantamount to saying it has authority to make an outright purchase of land for highway purposes and would invO!\'e a contra- diction. Moreoyer, our court held in the case of FI)'nn v. Beaverhead Coun- ty that the subdivision has no apilli- cation to the acquiSition of a right of way for highway purposes. The authority for the appointment of appraisers must, therefore, be found in Sec. 1685-1651, if at all. As no such a uthority is revealed the interposition of appraisers was not required. Our view is, therefore, that it was not necessary to ha\'e appraisers ap- pointed to value the land in question but that the board of county commis- sioners went beyond its power in ac- quiring a fee simple title thereto. 'Vhether Missoula County paid more for the land than it would for an ease- ment ill it is, of course, another rna t- ter.