IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 3

OCTOBER TERM, A.D. 2012

January 9, 2013

STEPHEN SMITH and AUDREY

SMITH, husband and wife,

Appellants

(Plaintiffs),

v.

BOARD OF COUNTY

COMMISSIONERS OF PARK

COUNTY, WYOMING

Appellee

(Defendant).

S-12-0103

Appeal from the District Court of Park County

The Honorable Wade E. Waldrip, Judge

Representing Appellants:

S. Joseph Darrah of Darrah Law Office, P.C., Powell, Wyoming.

Representing Appellee:

Larry B. Jones and William L. Simpson of Simpson, Kepler & Edwards, LLC

The Cody, Wyoming division of Burg Simpson Eldredge Hersh and Jardine, P.C. 

Argument by Mr. Jones.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be

made before final publication in the permanent volume.
1

VOIGT, Justice.

[¶1] The Smiths contend that an unlawful taking occurred when the Board of County

Commissioners of Park County (the Board) declared the Smiths’ private driveway to be 

part of a county road. Failing to obtain any relief through administrative proceedings, the 

Smiths sued the Board in district court, alleging claims of inverse condemnation under 

Wyo. Stat. Ann. § 1-26-512 (LexisNexis 2011), inverse condemnation under article 1, 

sections 32 and 33 of the Wyoming Constitution, trespass, and ejectment. The district 

court granted summary judgment to the Board on all of the Smiths’ claims, concluding 

that the inverse condemnation claims were barred by the statute of limitations found 

in the Wyoming Governmental Claims Act (WGCA), Wyo. Stat. Ann. §§ 1-39-101

to -121 (LexisNexis 2011), and that the trespass and ejectment claims failed as a matter 

of law because the Smiths no longer had sufficient possessory interest to make those 

claims.

[¶2] With due respect for the doctrine of stare decisis, but recognizing its limitations,

we will reverse the district court’s grant of summary judgment as to the inverse 

condemnation claims. The Smiths have not pursued their claims for trespass and 

ejectment in this appeal.

ISSUE

[¶3] Does the statute of limitations found in the WGCA govern in inverse 

condemnation cases?

FACTS

[¶4] The Smiths live on rural ranch land in Park County, Wyoming. They have always 

considered their access road to be a private driveway. In January 2006, the Smiths’ 

neighbors to the north, Scott and Marjory Justice, filed with the Board a Petition for 

Establishment of a County Road, along an unsurveyed legal description that closely 

equated to the Smiths’ driveway.

[¶5] The Board held an informal meeting on February 21, 2006, to discuss the Justices’ 

petition. At that meeting, the Board voted to appoint a viewer to determine the 

practicality of the proposed road. The viewer’s report presented on April 3, 2006,

indicated that “no significant reason appears to hinder Park County from proceeding with 

the process to establish this section of County Road R.O.W.” On May 17, 2006, 

however, the Board dismissed the Justices’ petition on the ground that the Smiths’ 

driveway already was part of County Road 11, which had been established in 1902.

[¶6] The gravamen of the Smiths’ disagreement with the Board is stated succinctly in 

paragraph 25 of their Complaint:
2

25. The location of the Plaintiffs’ driveway is quite different

from the location of County Road 11 depicted on the

1911 Count[y] Road Plat map which is the official

current record map recorded in the Office of [t]he Park

County Clerk. Plaintiffs[’] private driveway is at least a

quarter of a mile away from County Road No. 11 at

places, and runs across different parcels of land than

County Road No. 11 [a]s clearly depicted on the official

County Road Plat map.

[¶7] After reading in the newspaper of the Board’s action, the Smiths sought a 

reconsideration of the decision. The Board discussed the matter at a general meeting on 

September 5, 2006, and declined the Smiths’ request. The Smiths then filed a Petition for 

Judicial Review in the district court, challenging the Board’s authority to create a county 

road at a new location without following the provisions of Wyo. Stat. Ann. §§ 24-3-101 

to -127 (LexisNexis 2011), which statutes govern the procedures for the establishment, 

vacation, or alteration of county roads. On February 25, 2008, the district court 

remanded the matter to the Board for the purpose of conducting a survey of the existing 

county road to determine whether the Smiths’ driveway was, or was not, contained within 

the county road right-of-way.

[¶8] Upon remand, rather than do as the district court ordered, the Board simply 

appointed a second viewer to view the Smiths’ driveway. Without obtaining a survey of 

either the driveway or County Road 11, the Board declared that the driveway was part of 

the county road in that the former was “close” to the latter, and in that the 1902 survey of 

the county road likely was inaccurate on the county plat map. The Smiths then filed in 

the district court a Petition for Review of Agency Action. After a hearing on December 

10, 2009, the district court again remanded the matter to the Board, ruling that the Board 

should follow the statutory procedures for establishing, altering, or vacating a county 

road, specifically to include a survey of the Smiths’ driveway.

[¶9] Rather than obtain a survey of the Smiths’ driveway, the Board hired an expert, 

who determined that the 1902 survey used to create County Road 11 on the county’s 

official county road plat map was in fact correct. On December 18, 2009, the Smiths met 

with representatives of the county attorney’s office and with the Board’s expert to discuss 

the expert’s conclusions. The Smiths took the position that, if the 1902 survey of the 

county road was accurate, as the expert had established, their private driveway was not 

part of the county road because the two roadways were in different locations. Some time 

later, the county attorney informed the Smiths’ attorney that the Board did not intend to 
3

change its position that the Smiths’ driveway was part of the existing county road. This 

lawsuit followed.1

STANDARD OF REVIEW

[¶10] Our standard for the review of a summary judgment is so well known that it need 

not be repeated here. See, e.g., Knapp v. Landex Corp., 2006 WY 36, ¶ 7, 130 P.3d 924, 

926 (Wyo. 2006); and Ahrenholtz v. Laramie Econ. Dev. Corp., 2003 WY 149, ¶ 16, 79 

P.3d 511, 515 (Wyo. 2003). The question of the application of the WGCA to claims of 

inverse condemnation involves statutory construction, which is a question of law that we

review de novo. State ex rel. Wyo. Dep’t of Revenue v. Hanover Compression, LP, 2008 

WY 138, ¶ 8, 196 P.3d 781, 784 (Wyo. 2008).

DISCUSSION

[¶11] In its answer to the Smiths’ Complaint, the Board asserted the following 

affirmative defenses:

2. Plaintiffs have failed to comply with the Wyoming

Governmental Claims Act, W.S. § 1-39-101, et seq.

(LexisNexis 2009) and/or Article 16, § 7 of the Wyoming

Constitution and thus this Court does not have subject matter

jurisdiction over some or all the claims presented.

3. Defendant is immune from liability for the claims of

Plaintiffs, or some of them, under the Wyoming

Governmental Claims Act, W.S. § 1-39-101, et seq.

(LexisNexis 2009) and/or Article 1, § 8 and Article 16, § 7 of

the Wyoming Constitution.

. . . .

11. Plaintiffs’ claims, or some of them, are barred by the

statute of limitations.

[¶12] As noted above, the district court granted summary judgment to the Board on the 

ground that the Smiths’ inverse condemnation cause of action was barred by the statute of 

 

1 The background facts set forth above are taken from the Smiths’ Complaint. Suffice it to say that, while

denying many of the facts and legal conclusions of the Complaint, the primary defense to the issues 

involving the creation of the road is the Board’s position that it is not required at this point in time to 

follow the statutory road creation procedures because the Smiths’ driveway is part of the existing County 

Road 11.
4

limitations found in the WGCA. The district court’s analysis leading to this conclusion is 

enlightening and we will quote from it at length:

Inverse condemnation is explained by the Wyoming Statutes

as follows:

When a person possessing the power of condemnation

takes possession of or damages land in which he has

no interest, or substantially diminishes the use or value

of land, due to activities on adjoining land without the

authorization of the owner of the land or before filing

an action of condemnation, the owner of the land may

file an action in district court seeking damages for the

taking or damage and shall be granted litigation

expenses if damages are awarded to the owner.

Wyo. Stat. Ann. § 1-26-516 (2011).

Until very recently, the Wyoming Supreme Court has

been consistent concerning whether the requirements and

time limits of the WGCA apply to a claim of inverse

condemnation. For example, twelve years ago in Waid v.

State ex rel. Dept. of Transp., 996 P.2d 18 (Wyo. 2000), the

Wyoming Supreme Court unequivocally held that the time

limitations of the WGCA apply to claims of inverse

condemnation.

The requirement that a claim be presented pursuant to

the procedure established by the Wyoming

Governmental Claims Act is applicable to inverse

condemnation actions, and the claim must be filed 

within two years of the “act, error or omission” giving 

rise to the claim.

Id. at 25. Four years later, in Lankford v. City of Laramie,

2004 WY 143, 100 P.3d 1238 (Wyo. 2004), the Wyoming

Supreme Court held that applying the time limitations of the

WGCA to inverse condemnation claims is not

unconstitutional.

The conclusion that inverse condemnation claims are

subject to the limitation periods found in the WGCA

means that the district court was correct in applying its 
5

statute of limitation analysis to all of the state law

claims. The next logical question then becomes

whether that analysis was appropriate. We cannot help

but conclude that it was. The amended complaint

reflected on its face that the action was not filed within

one year of presentment of the claim. Our law is clear

that the district court does not have subject matter

jurisdiction to adjudicate governmental claim cases

where the action was not timely filed.

Id., ¶ 22, 100 P.3d at 1244. Next, in 2008, the Wyoming 

Supreme Court again clearly opined that the time limitations 

of the WGCA apply to inverse condemnation claims.

There is little question that the Goses’ claim for 

inverse condemnation is subject to the time limits for 

filing claims set forth in the Wyoming Governmental 

Claims Act, as well as the requirements of Wyo. 

Const. art. 16, § 7. Waid v. State ex rel. Dept. of 

Transp., 996 P.2d 18, 24-25 (Wyo. 2000). (“[The 

parties] agree that the time limits for filing claims set 

forth in the Wyoming Governmental Claims Act, Wyo. 

Stat. Ann. §§ 1-39-101 through 1-39-120, apply to a 

claim against the State for inverse condemnation.... 

[W]e agree with the parties that the time limits 

articulated in Wyo. Stat. Ann. § 1-39-113 apply.”).

Gose v. City of Douglas, 2008 WY 126, ¶ 15, 193 P.3d 1159, 

1163 (Wyo. 2008), overruled on other grounds by Brown v. 

City of Casper, 2011 WY 35, 248 P.3d 1136 (Wyo. 2011). 

Finally, in 2011, the Wyoming Supreme Court again noted 

that claims of inverse condemnation require compliance with 

the WGCA.

In Wyo. State Highway Dep’t v. Napolitano, 578 P.2d 

1342, 1346 (Wyo. 1978), the Court held that

presenting a notice of claim is a condition precedent to 

suing the State even in condemnation cases. . . .

Up to this point, Wyoming law was clear that

presentation of a notice of claim is required in order to

bring an action against a governmental entity and the 
6

failure to comply with that condition precedent results

in dismissal.

Brown v. City of Casper, 2011 WY 35, ¶¶ 27-28, 248 P.3d 

1136, 1143 (Wyo. 2011) (emphasis added). Thus, from 2000 

through 2011, the Wyoming Supreme Court consistently 

required that inverse condemnation claims comply with the 

requirements in the WGCA.

However, the day before the summary judgment

hearing in this case, the Wyoming Supreme Court issued its

opinion in Sinclair v. City of Gillette, 2012 WY 19, [270 P.3d

644 (Wyo. 2012)], where it seemingly altered its tone on this

issue. The plaintiffs in Sinclair submitted a notice of claim to

the City of Gillette and then filed a complaint in district court.

Id., ¶ 5. Their complaint included three claims of relief: (1) 

injunction, (2) “statutory damages” for inverse condemnation, 

and (3) “alternative damages” consistent with their WGCA 

notice of claim. Id. The Wyoming Supreme Court held that 

the plaintiffs third cause of action was not viable under the 

WGCA and, therefore, was barred by the doctrine of 

governmental immunity. Id., ¶ 16. The Court then went on 

to discuss the plaintiffs’ inverse condemnation claim:

The Sinclairs also brought a claim against the City

under the Wyoming Eminent Domain Act. One 

section of that Act, Wyo. Stat. Ann. § 1-26-516, is 

entitled “Action for inverse condemnation,” and 

provides that:

When a person possessing the power of

condemnation takes possession of or damages

land in which he has no interest, or substantially

diminishes the use or value of land . . . before

filing an action of condemnation, the owner of

the land may file an action in district court

seeking damages for the taking or damage and

shall be granted litigation expenses if damages

are awarded to the owner.

We have established that the Wyoming Eminent

Domain Act “covers the entire subject of eminent

domain.” L.U. Sheep Co. v. Board of County 
7

Comm’rs, 790 P.2d 663, 669 (Wyo. 1990).

Accordingly, the Act provides the exclusive remedy

available in cases of inverse condemnation. See

Waid v. State, 996 P.2d 18, 23 (Wyo. 2000). The fact 

that the Sinclairs’ exclusive remedy is under the 

Wyoming Eminent Domain Act reinforces our 

conclusion that they have no viable cause of action

against the City under the Wyoming Governmental 

Claims Act.

Id., ¶ 17 (emphasis added). The Wyoming Supreme Court’s 

language in Sinclair hints that the WGCA does not apply to 

causes of action for inverse condemnation and that only the 

Wyoming Eminent Domain Act applies to such claims.

. . . .

This Court recognizes the conflict inherent in requiring

an inverse condemnation claimant to operate under the

WGCA. Specifically, the WGCA affirms governmental

immunity “from liability for any tort except as provided in 

W.S. 1-39-105 through 1-39-112.” Wyo. Stat. Ann. § 1-39-

104(a) (2011) (emphasis added). A legitimate question exists 

regarding whether inverse condemnation is a tort and should 

be subject to the WGCA. Further, none of the exceptions

found in Wyoming Statutes 1-39-105 through 1-39-112 

appear to waive immunity for anything approaching inverse 

condemnation. Thus, even if a claimant complies with all 

requirements under the WGCA, it could be argued that the 

claimant would have no remedy because the WGCA does not 

waive governmental immunity for inverse condemnation. 

However, in light of the very explicit statements from the 

Wyoming Supreme Court over the past decade which hold 

that the WGCA “is applicable to inverse condemnation 

actions,” Waid, supra, this Court finds little choice in the 

matter but to apply the WGCA’s requirements to inverse 

condemnation claims.

. . . .

In sum, this Court believes it has no alternative but to

conclude that the WGCA applies to Plaintiffs’ two claims of 

inverse condemnation based upon controlling case law from 
8

the Wyoming Supreme Court. . . . Therefore, Plaintiffs’

claims of inverse condemnation are barred by the two-year 

time limitation set forth in Wyoming Statute § 1-39-113(a). 

Accordingly, summary judgment must be granted in the 

Board’s favor on these two claims.

[¶13] We have quoted at such length from the district court’s decision letter because it 

makes several points that need to be made in this opinion. First, it sets forth this Court’s 

precedent on the subject, while recognizing the “hole in the dike” left by Sinclair. 

Second, it notes the inconsistency resulting from requiring an inverse condemnation 

claimant to meet the requirements of the WGCA, while the WGCA itself provides no 

remedies for such claimant. And third, it reluctantly embraces the doctrine of precedent 

that requires the district court to abide by the ruling of this Court, even when the district 

court obviously does not agree.

[¶14] This seems a good point to interject some comments about stare decisis, which 

doctrine has been defined as follows:

The doctrine of precedent, under which a court must follow

earlier judicial decisions when the same points arise again in

litigation.

Black’s Law Dictionary 1537 (9th ed. 2009). The reasons for this Court’s usual 

adherence to precedent were described in Borns ex rel. Gannon v. Voss, 2003 WY 74, 

¶ 25, 70 P.3d 262, 271 (Wyo. 2003):

“‘Today’s decision is supported, though not 

compelled, by the important doctrine of stare decisis, 

the means by which we ensure that the law will not 

merely change erratically, but will develop in a 

principled and intelligible fashion. That doctrine 

permits society to presume that bedrock principles are 

founded in the law rather than in the proclivities of 

individuals, and thereby contributes to the integrity of 

our constitutional system of government, both in 

appearance and in fact. While stare decisis is not an 

inexorable command, the careful observer will discern 

that any detours from the straight path of stare decisis

in our past have occurred for articulable reasons, and 

only when the Court has felt obliged “to bring its 

opinions into agreement with experience and with facts 

newly ascertained.”’”
9

State v. Carter, 714 P.2d 1217, 1228 (Wyo. 1986) (Urbigkit,

J., dissenting, with which Cardine, J. joined (quoting Burnet

v. Coronado Oil & Gas Co., 285 U.S. 393, 412, 52 S.Ct. 443,

449, 76 L.Ed. 815 (1932) (Brandeis, dissenting) and Vasquez

v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 624-25, 88 L.Ed.2d

598 (1986)). Similarly, in Worthington v. State, 598 P.2d 

796, 804 (Wyo. 1979), we declared that “[w]ithout exercise 

of judicial restraint in this area, the law would lose its 

stability and certainty, which is the basis of a well-ordered 

society and the keystone of a stable and orderly system.” In 

recent years, we have often cited Payne v. Tennessee, 501 

U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991) 

for the proposition that stare decisis “furthers the 

‘“evenhanded, predictable, and consistent development of 

legal principles, fosters reliance on judicial decisions, and 

contributes to the actual and perceived integrity of the judicial 

process.”’” State ex rel. Wyoming Workers’ Compensation 

Div. v. Barker, 978 P.2d 1156, 1161 (Wyo. 1999) (quoting 

Goodrich v. Stobbe, 908 P.2d 416, 420 (Wyo. 1995) and 

Cook v. State, 841 P.2d 1345, 1353 (Wyo. 1992)).

[¶15] Recognizing that stare decisis is not an “inexorable command,” but a “principle of 

policy,” we have rejected it now and then over the years for specific articulated reasons. 

See, e.g., Arnott v. Arnott, 2012 WY 167, ¶¶ 2, 29, 293 P.3d 440, 442, 453 (Wyo. 2012) 

(presumption in best interest of child analysis when custodial parent relocates 

overturned); Motley v. Platte Cnty., 2009 WY 147, ¶ 6, 220 P.3d 518, 520 (Wyo. 2009)

(Burke, J., dissenting) (governing decisions are unworkable or are badly reasoned)

(overruled in part on other grounds by Brown v. City of Casper, 2011 WY 35, ¶¶ 38-44, 

248 P.3d 1136, 1145-47 (Wyo. 2011)); Borns, 2003 WY 74, ¶ 26, 70 P.3d at 271 (need 

for common law to keep pace with society); Dunnegan v. Laramie Cnty. Comm’rs, 852 

P.2d 1138, 1140 (Wyo. 1993) (“to prevent the perpetuation of error and ‘to vindicate 

plain, obvious principles of law[]’”); Cook v. State, 841 P.2d 1345, 1353 (Wyo. 1992) 

(“to clarify an inappropriate application of a traditional rule [so as] ‘to vindicate plain, 

obvious principles of law and remedy continued injustice[]’”); and Oroz v. Bd. of Cnty.

Comm’rs, 575 P.2d 1155, 1157 (Wyo. 1978) (to discontinue an unfair and improper rule 

that operates to the detriment of those who may suffer tortious injury; to re-examine the 

efficacy of an anachronistic doctrine in modern society). Plainly put, the rule of stare 

decisis does not justify the perpetuation of past wrongs.

[¶16] A few points can be added to the district court’s observations to help explain why 

this Court now concludes that the WGCA should not, and does not, apply to inverse 

condemnation actions. In 1978, this Court issued the Oroz opinion mentioned above. 

See supra ¶ 15. In that opinion, we concluded that the long-standing doctrine of 
10

governmental immunity from damages in tort actions should be abrogated, despite the

equally long-standing doctrine of stare decisis. Id., 575 P.2d at 1157-58. The gravamen 

of our opinion was that enforcement of the doctrine resulted in “unfair and inequitable 

consequences” and that, instead, governmental entities should be subject “to the same 

rules as private persons or corporations if a duty has been violated and a tort has been 

committed.” Id. at 1158. In short, the focus of Oroz was upon torts and upon immunity.

[¶17] Very shortly after Oroz was published, the Wyoming Legislature adopted the 

Wyoming Governmental Claims Act. Significantly, in stating the purpose of the Act, the 

Legislature referred specifically to Oroz and “recognize[d] the inherently unfair and 

inequitable results which occur in the strict application of the doctrine of governmental 

immunity.” Wyo. Stat. Ann. § 1-39-102. The focus of the WGCA, like the focus of 

Oroz, was upon torts and upon immunity. The Act was not, however, open-ended. 

Schematically, the WGCA retained governmental immunity for tort liability, but then 

enumerated numerous specific exceptions where such immunity would no longer apply. 

Wyo. Stat. Ann. §§ 1-39-104 to -121.

[¶18] It is within this context that we now discuss inverse condemnation. Both the 

Wyoming Constitution and Wyoming Statutes provide for the exercise of the power of 

eminent domain. Wyo. Const. art. 1, § 32; Wyo. Stat. Ann. §§ 1-26-501 to -516

(LexisNexis 2011). Similarly, both the Wyoming Constitution and the Wyoming Statutes 

require that the exercise of the power of eminent domain--sometimes called a “taking”--

cannot occur without the payment of just compensation for the property lost. Wyo. 

Const. art. 1, § 33; Wyo. Stat. Ann. § 1-26-514. More particular to the instant action, 

Wyo. Stat. Ann. § 1-26-516 provides that when a taking has occurred without the 

contemplated compensation, the injured party “may file an action in district court seeking 

damages for the taking or damage . . . .” This action is called an inverse condemnation 

action.

[¶19] Logic now leads us to conclude that there is nothing about the constitutional and 

statutory right to an inverse condemnation action, and nothing about the WGCA, that 

could reasonably suggest that the former should be subject to the latter. The WGCA 

abrogated governmental immunity for certain listed torts. Inverse condemnation is not a 

tort, and because it is a constitutional and statutory remedy, it never was subject to 

governmental immunity. See 11A McQuillin, Municipal Corporations § 32:158, at 383

(3d ed. Revised 2009) (inverse condemnation is not based on tort or contract principles). 

In fact, just the opposite is true; rather than recognizing or providing for governmental 

immunity, both the constitutional provision and the statute provide that there can be no 

taking without compensation. The avowed purpose of the WGCA was to enlarge the 

number of circumstances in which a private citizen could seek a remedy from a 

governmental entity. The tool used in achieving that goal was the abrogation of common 

law governmental immunity for certain specific torts. For example, Wyo. Stat. Ann. § 1-

39-105 provides as follows:
11

A governmental entity is liable for damages resulting

from bodily injury, wrongful death or property damage

caused by the negligence of public employees while acting

within the scope of their duties in the operation of any motor

vehicle, aircraft or watercraft.

Neither the purpose nor the structure of the WGCA suggests that it applies to inverse

condemnation actions, which was the subtle message underlying the district court’s 

decision letter.

[¶20] If the WGCA does not, as a general matter, apply to inverse condemnation claims, 

neither does its two-year period of limitations for the presentment of a claim, found in 

Wyo. Stat. Ann. § 1-39-113, nor its one-year period of limitations for the commencement 

of an action, found in Wyo. Stat. Ann. § 1-39-114. The question then becomes what

period of limitations does apply in inverse condemnation actions. The answer to that 

question is not readily apparent within the Eminent Domain Act, found at Wyo. Stat. 

Ann. §§ 1-26-501 to -516. Furthermore, there does not appear to be a consensus

nationwide on what statute of limitations should apply. See 27 Am. Jur. 2d Eminent 

Domain § 795 (2004). While this Court has not directly addressed the application of a 

statute of limitations to inverse condemnation claims, outside of the WGCA, we did 

make the following observation in dicta in Cheyenne Airport Bd. v. Rogers, 707 P.2d 

717, 725 (Wyo. 1985):

Section 1-3-103, W.S. 1977, provides that an action for the

recovery of title or possession of lands, tenements or

hereditaments can only be brought within ten years after the

cause of action accrues. Cases from other jurisdictions

indicate that the running of such statutes of limitations bar

subsequent claims of inverse condemnation. See Annot., 26 

A.L.R.4th 68 (1983). Thus, § 1-3-103, supra, would 

seemingly preclude a claim (had such a claim even been 

made) that the federal or state government had taken a 

general flight easement by either their declarations of public 

right of way or by their use of the airspace.

Id.; see also 11A McQuillin, Municipal Corporations, supra, at § 32:162, at 412-13.

[¶21] While there may be some logic in comparing inverse condemnation to causes of 

action such as adverse possession--the common denominator being someone’s use of 

another’s property without permission or compensation--that logic does not extend into a 

reading of Article 1, Chapter 3 of the Wyoming Statutes, which is entitled “Limitation of 
12

Actions.” Wyo. Stat. Ann. § 1-3-103 is entitled “Recovery of real property; generally.” 

It reads as follows:

An action for the recovery of the title or possession of

lands, tenements or hereditaments can only be brought within

ten (10) years after the cause of such action accrues.

An action in inverse condemnation is not an action for the recovery of the title or 

possession of property. It is an action for damages. Wyo. Stat. Ann. § 1-3-103 is not 

ambiguous, and by its clear words, it does not apply to inverse condemnation actions.

[¶22] On the other hand, the language of Wyo. Stat. Ann. § 1-3-105(a)(ii)(B) much more 

closely fits an inverse condemnation action. First, the section is entitled “Actions other 

than recovery of real property.” An inverse condemnation action is an “action other than 

recovery of real property.” Second, the language of the subsection speaks directly to 

such a cause of action:

(a) Civil actions other than for the recovery of real

property can only be brought within the following periods

after the cause of action accrues:

. . . .

(ii) Within eight (8) years, an action:

. . . .

(B) Upon a liability created by statute

other than a forfeiture or penalty.

[¶23] Although both article 1, section 32 and article 1, section 33 of the Wyoming 

Constitution declare that private property shall not be taken without compensation, it is 

Wyo. Stat. Ann. § 1-26-516 that creates the cause of action whereby an injured party may 

recover damages from the person responsible for an unlawful taking. The statute does 

not create a forfeiture or a penalty; it creates liability for damages caused by a taking. 

The period of limitations for bringing an action in inverse condemnation is eight years.

[¶24] The pleadings allege, and the district court found, that the Smiths submitted a 

notice of claim to the Board on February 10, 2009, prior to the filing of the instant action, 

which occurred on February 3, 2010. The notice of claim is in the record, and it clearly 
13

appears to meet the requirements of article 16, section 7 of the Wyoming Constitution.2 

Without going into unnecessary detail as to dates, we will note that the current 

controversy began in 2006 with the filing of the Justice petition described above. See 

supra ¶ 5. The district court found that the Smiths knew of their inverse condemnation 

claim via events occurring on May 17, 2006, or, at the latest, on October 4, 2006. 

Inasmuch as a period of eight years has not passed since then, the statute of limitations 

has not run on the Smiths’ claim.

CONCLUSION

[¶25] We conclude that inverse condemnation actions are not subject to the WGCA, and 

we reverse all previous opinions of this Court that have held to the contrary. The period 

of limitations applying to inverse condemnation actions is that period found in Wyo. Stat. 

Ann. § 1-3-105(a)(ii)(B), a period of eight years. The Smiths’ action was filed well 

within that period. Therefore, we reverse and remand to the district court for further 

proceedings consistent with this opinion.

 

2 The specific issue before the Court in this case is the period of limitations for commencing an action, not

the period of limitations for presenting a claim. Because we have concluded that the WGCA does not

apply to inverse condemnation actions, neither WGCA period of limitations applies in this case. Article

16, section 7 of the Wyoming Constitution continues to require, however, that claims against

governmental entities not be paid until a “full itemized statement” of such is filed in the appropriate 

office. We do not herein undertake to determine the appropriate time constraints for the presentment of 

such a claim under this payment provision.