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SENATE BILL NO. 418
INTRODUCED BY C. SWYSGOOD
A BILL FOR AN ACT ENTITLED: "AN ACT CLARIFYING THE SCOPE OF BRIDGE EASEMENTS ON COUNTY AND STATE RIGHTS-OF-WAY; PROHIBITING THE USE OF A RIGHT-OF-WAY FOR RECREATIONAL ACCESS TO THE UNDERLYING STREAMBED OR WATERCOURSE UNLESS THAT ACCESS IS SPECIFICALLY STATED IN THE EASEMENT; AMENDING SECTIONS 7-14-2107, 7-14-2112, 60-1-103, AND 60-4-101, MCA; AND PROVIDING APPLICABILITY DATES."
WHEREAS, recent conflicts have arisen in the State of Montana over the use of bridges on county and state roads as access points to the underlying streambed or watercourse, where the underlying fee title is held in private ownership; and
WHEREAS, most road easements were granted, petitioned, or condemned in the first half of the twentieth century; and
WHEREAS, rights of recreational users of streambeds and watercourses were not recognized until well after the establishment of most state and many county roads, so recreational use was not a consideration when those roads were established; and
WHEREAS, the scope of most road easements is for through travel, not off-road access; and
WHEREAS, the use of road and bridge easements for parking vehicles, unloading and loading boats, and providing off-road recreational access is outside the scope of the easements; and
WHEREAS, unplanned use of road and bridge easements may create environmental problems, infringe on private property rights, create public safety concerns, violate existing prohibitions on parking of vehicles, and create additional burdens on the owners of the underlying real property interest.
THEREFORE, the Legislature finds it appropriate to clarify the scope of road and bridge easements when the underlying real property interest is in private ownership.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 7-14-2107, MCA, is amended to read:
"7-14-2107. Acquisition of right-of-way. (1) Each board of county commissioners shall contract,
agree for accept,
purchase, or otherwise lawfully acquire right-of-way for county roads over private property. It may institute proceedings
under Title 70, chapter 30, paying for such right-of-way rights-of-way from the county road fund.
(2) Each board shall acquire rights-of-way for county roads and discontinue or abandon them only upon proper petition
therefor for discontinuation or abandonment.
(3) By taking or accepting interests in real property for county roads, the public acquires only the right-of-way and the incidents necessary to enjoying and maintaining it as a thoroughfare.
(4) Rights-of-way for county roads and bridges do not include recreational access to a streambed or watercourse unless:
(a) recreational access is specifically granted or enumerated in the document that creates the right-of-way or bridge easement; or
(b) all of the underlying real property interests in the county road right-of-way are in public ownership."
Section 2. Section 7-14-2112, MCA, is amended to read:
"7-14-2112. Width of roads. (1) The width of all county roads, except bridges, alleys, or lanes, must be 60 feet unless a greater or smaller width is ordered by the board of county commissioners on petition of an interested person.
(2) The width of all private highways and byroads, except bridges, must be at least 20 feet.
(3) The right-of-way width at a bridge is the width of the bridge itself, with a secondary, nonexclusive, and nontransferable easement held by the county or the department of transportation solely for the maintenance and repair of the bridge, the bridge's underlying structures, and the streambanks.
(3)(4) Nothing in this This section shall be construed as increasing or decreasing does not increase or decrease the
width of either kind of highway or road established or used as such prior to December 31, 1966. This section does not
affect the right to portage provided for in 23-2-311."
Section 3. Section 60-1-103, MCA, is amended to read:
"60-1-103. General definitions. Subject to additional definitions contained in this title that are applicable to specific chapters or sections and unless the context otherwise requires, terms are defined as follows:
(1) "Abandonment" means cessation of use of right-of-way or an easement or cessation of activity on the right-of-way or easement with no intention to reclaim or use again. Abandonment is sometimes called vacation.
(2) "Bridge" means any bridge constructed by the department, together with all appurtenances, additions, alterations, improvements, and replacements and the approaches to the bridge, lands used in connection with the bridge, and improvements incidental or integral to the bridge.
(3) "Commission" means the transportation commission provided for in 2-15-2502.
(4) "Condemnation" means taking by exercise of the right of eminent domain.
(5) "Construction" means supervising, inspecting, actual building, and all expenses incidental to the construction or reconstruction of a highway, including locating, surveying, mapping, and costs of right-of-way or other interests in land and elimination of hazards at railway grade crossings.
(6) "Control of access" means the condition in which the right of owners or occupants of abutting land or other persons to access, light, air, or view in connection with a highway is fully or partially controlled by public authority.
(7) "County road" means any public highway opened, established, constructed, maintained, abandoned, or discontinued by a county in accordance with Title 7, chapter 14.
(8) "Department" means the department of transportation provided for in Title 2, chapter 15, part 25.
(9) "Director" means the director of transportation, a position provided for in 2-15-2501.
(10) "Easement" means a right acquired by public authority to use or control property for a designated purpose.
(11) "Eminent domain" means the right of the state to take private property for public use.
(12) "Federal-aid highway" means a public highway that is a portion of any of the federal-aid highway systems.
(13) "Federal-aid highway systems" means all of the systems named as part of the systems and their urban extensions.
(14) "Federal-aid interstate system" means that system of public highways selected by the commission in cooperation with adjoining states, subject to the approval of the secretary of commerce, as provided in Title 23, U.S.C.
(15) "Federal-aid primary system" means that system of connected public highways designated by the commission, subject to the approval of the secretary of commerce, as provided in Title 23, U.S.C.
(16) "Federal-aid secondary system" means that system of public highways not in the federal-aid primary or interstate systems selected by the commission in cooperation with the boards of county commissioners, subject to the approval of the secretary of commerce, as provided in Title 23, U.S.C.
(17) "Fee simple" means an absolute estate or ownership in property, including unlimited power of alienation.
(18) "Highway" includes rights-of-way or other interests in land, embankments, retaining walls, culverts, sluices, drainage structures, bridges, railroad-highway crossings, tunnels, signs, guardrails, and protective structures.
(19) "Highway", "road", and "street", whether the terms appear together or separately or are preceded by the adjective "public", are general terms denoting a public way for purposes of vehicular travel and include the entire area within the right-of-way.
(20) "Highway authority" means the entity at any level of government authorized by law to construct and maintain highways.
(21) "Maintenance" means the preservation of the entire highway, including surface, shoulders, roadsides, structures, and traffic-control devices that are necessary for the safe and efficient use of the highway.
(22) "Public highways" means all streets, roads, highways, bridges, and related structures:
(a) built and maintained with appropriated funds of the United States or the state or any political subdivision of the state;
(b) dedicated to public use;
(c) acquired by eminent domain; or
(d) acquired by adverse use by the public, jurisdiction having been assumed by the state or any political subdivision of the state.
(23) (a) "Right-of-way" is a general term denoting land, property, or any interest in land or property, usually in a strip, acquired for or devoted to highway purposes.
(b) A right-of-way does not include recreational access to streambeds or watercourses unless:
(i) recreational access is specifically granted or enumerated in the document that creates a highway right-of-way or bridge easement; or
(ii) all of the underlying real property interests in a highway right-of-way are in public ownership.
(24) "State highway" means any public highway planned, laid out, altered, constructed, reconstructed, improved, repaired, maintained, or abandoned by the department."
Section 4. Section 60-4-101, MCA, is amended to read:
"60-4-101. Rights acquired by public in highway. (1) By taking or accepting land for a highway or a bridge, the public may acquire either a fee simple or any lesser estate or interest.
(2) When the interest acquired by a public authority for a highway or a bridge is an easement, the terms of the easement must specify the easement's designated purposes."
NEW SECTION. Section 5. Applicability -- retroactive applicability. [This act] applies to road or bridge easements created on or after [the effective date of this act] and applies retroactively, within the meaning of 1-2-109, to road or bridge easements created before [the effective date of this act].
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Latest Version of SB 418 (SB0418.01)
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