“It goes through almost all the houses on the west side of the street,” said Gordon, who owns land just north of the intersection.
The right-of-way runs roughly parallel to Miller Creek Road, but its centerline is offset so it cuts into properties sitting west of the road by about 30 feet. It surfaced as part of the Miller Creek reconstruction and complicates land negotiations - linked to rebuilding the Wye - already fraught with difficulty.
Government officials see the old “public way” as a potential asset that could be banked for future generations to use in a project needed decades from now. At least one official also views the discovery as a current public relations nightmare or one in the making.
Such old right-of-ways turn up often in Missoula County, officials said. One county surveyor views this recent finding as a strong argument to retrace all the old county roads and encroachments. County officials didn't grant his request in 2001 to do that research, so Charlie Wright said he is asking again.
“This is a bigger problem. ... (It's the) tip of the iceberg with Miller Creek,” said Wright, assistant director of Public Works and surveyor.
The public way surfaced just as the city was trying to complete negotiations with neighbors for the land needed to rebuild the Wye. A dispute arose over the location of pins marking the corners of properties, said city Public Works director Steve King.
On behalf of the city, WGM Group went to the county surveyor's office to research the matter, King said. When Wright opened the books, he easily found the right-of-way.
Some old road books had surfaced around 1979. Wright said county staff had recorded that information in the new books - including this right-of-way - through 1985 at the latest. Sometime after, the city hired a firm to survey the road, but the surveyor didn't come up with the right-of-way, Wright said. So its existence didn't come to light then.
Instead, it was discovered a few weeks ago when WGM Group looked into the matter. King then called a meeting to tell the neighbors. Legal circumstances changed, but the city would continue to negotiate right-of-way acquisition in good faith, he said.
For at least some neighbors, though, that meeting put a halt to negotiations. Bob and Deb Cole said if they sign an agreement now, they're essentially accepting the right-of-way as valid. And they don't - and won't.
“It was pretty much sprung on us. They were pretty giddy about it,” Bob Cole said.
First of all, the public way came up late in the game. It surfaced after the government issued building permits there and the county accepted those taxes, the Coles said. Plus, the 1896 record looks as old as it is and is barely legible to the naked eye.
“I mean, can you even read that? You've got to be kidding. How can you even read that?” said Deb Cole, pointing to the faded script on a copy.
The Coles also said they didn't like the tone of the meeting. City officials told them the newly discovered right-of-way offered an additional 30 feet. As such, the city didn't have to buy easements but was “doing a favor” for neighbors by doing so, the Coles said.
“If that isn't strong-arming, I don't know what is,” Bob Cole said.
Some also say it's government taking more than its fair share. Gordon said instead of claiming a standard 60-foot road, the city wants to claim 90 feet.
“Now they're claiming both right-of-ways. They're claiming the old one and the new one,” she said.
Neighbors fear that moving ahead means risking that the city or county will invoke that right-of-way sometime in the future and that public projects will spill into their living rooms and garages. They want the county to vacate it.
“It's a huge problem because you can't sell your property there now because there's a cloud on the title,” Gordon said.
Chief Deputy County Attorney Mike Sehestedt said the situation puts government in a no-win situation.
“Right now, in terms of public relations, this is an awful mess,” Sehestedt said.
The public is asking government to vacate the right-of-way and save those property owners. But that's today. If the government saves them today and needs to buy back the land tomorrow, he said public opinion won't shine kindly on that decision either.
“How stupid could government be? They had it and they gave it away,” he said the public would say.
Sehestedt also said a question remains about whether the city or the county controls the right-of-way. King plans to ask the Missoula City Council to annex the area and then vacate whatever government can't use in the long run. But the neighbors plan to ask the county commissioners to vacate. If the land does turn out to be under the county's control, it isn't clear whose request would take precedent.
“It would probably be a race to see who acted first,” Sehestedt said.
He also said he feels sorry for the people who are affected. But building permits, for example, deal with everything inside the walls of a structure and nothing else. (Sehestedt said it's one of his disputes with building codes. Officials have issued permits for houses in floodplains, for example.)
At any rate, he said had previous surveyors bothered to do the research, they would have discovered the right-of-way and avoided the current situation.
“At the end of the day, the reason these people are in trouble is they got bad surveys or they bought on bad surveys. It's nothing we did,” Sehestedt said.
He said even a partial vacation won't completely satisfy property owners. The right-of-way that runs through their homes would move but still would run closer to the edges of their homes.
Gordon said she wants public officials to consider their current constituents, the people who live along that road now and are affected by decisions. She doesn't like the idea that the Public Works director is making decisions for a time when she and her neighbors are long gone.
“Steve's responsibility isn't to the five generations from now when we're all dead and moldering,” Gordon said.
King disagreed. He said he has the responsibility to consider the public's interest 100 years out. He's considering the good of all the public, too. If they can imagine a use for the land later, he said he recommends against a total vacation.
“I could imagine that part of it could be a portion of a future public project,” King said.
Wright said title companies don't always find these historical roads because they generally search just 15 years back. In fact, when Wright first started finding the old roads, the title companies took note. He said they began including a standard clause in their contracts to protect themselves from liability, and he's heard they called it the “Charlie Wright exemption.”
He said he has resurrected a memo he sent to the county administrative officer and commissioners seven years ago. In it, he asked for permission to begin retracing all the old county roads.
“I didn't really get an answer,” he said of his original request.
He submitted it again Friday. Doing the work would be an enormous task but it also would iron out right-of-way and encroachment conflicts ahead of time, he said.
Reporter Keila Szpaller can be reached at 523-5262 or at keila.szpaller@missoulian.com.
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