NO. 84-56 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

WALTER S. RIDDOCK, 

Plaintiff and Appellant, 

-vsTHE CITY OF HELENA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Dowling Law Firm; Thomas Dowling, Helena, Montana 

For Respondent : 

Jeffrey M. Sherlock, Helena, Montana 

Submitted on Briefs: April 19, 1984 

Decided: September 27, 1984 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

F7alter R. Riddock filed a complaint in Lewis and Clark 

County District Court alleging that the City of Helena had 

constructed a pipeline across the land of his predecessors in 

interest without permission or payment of compensation. 

Riddock, as present owner of the land, seeks compensation for 

the alleged taking and recovery of the value of the City's 

use since installation of the pipeline, or, in the 

alternative, an order requiring the City to remove the 

pipeline. The District Court granted summary judgment in the 

City's favor and Riddock appeals. We affirm. 

The issues are: 

1. May plaintiff maintain an action for inverse 

condemnation, trespass and injunctive relief against the City 

for construction of a water pipeline in 1959 across lands 

then owned by the plaintiff's predecessor in interest? 

2. Did the City obtain an easement by prescription for 

its water pipeline across plaintiff's land? 

In 1959 the City of Helena constructed its Missouri 

River water supply line from a regulating reservoir in the 

Helena valley to the Missouri River Treatment Plant, also 

located in the Helena valley. Prior to construction of the 

pipeline, the City obtained easements from many property 

owners. However, for reasons undisclosed by the record, the 

City constructed the line outside the granted easements on 

several parcels of land, including that now owned by Riddock. 

Since 1959 the City has operated the water supply line under 

the land of Riddock and his predecessor and without the 

permission of either. 

When the water supply line was installed in 1959, the 

City's construction crews staked out the actual location of 

the pipeline. The pipeline was constructed along the staked 
route during daylight hours. The O'Connell Ranch Compa.ny was 

the owner of the land at that time, but is not a party to 

this action. Riddock became the owner of the land in May, 

1978. 

Riddock contends that when he purchased the property in 

May, 1978 he was unaware that the pipeline crossed the land. 

He states that at the time of the purchase he secured a title 

insurance policy which did not reveal any encumbrances or 

easements over the property in favor of the City. Riddock is 

a land. developer and speculator who purchased the land 

intending to hold it for subdivision and resale. 

Riddock filed this action on February 5, 1983 after 

negotiations with the City ended unsuccessfully. The 

complaint is in three counts. The first count is for inverse 

condemnation; the second is for dollar rental value for the 

City's use of the land over the years; and the third is an 

alternative request for injunctive relief requiring the City 

to remove the pipeline at its own expense and restore the 

land to its original condition. 

After filing of interrogatories and responses by both 

parties, Riddock and the City each moved for summary 

judgment. On October 18, 1983 the District Court granted the 

City's motion for summary judgment. In its findings, 

conclusions and order, the court found that the only person 

entitled to recover for inverse condemnation is the owner of 

the land at the time of the taking, which in this case would 

have been at the time of construction. Because Riddock was 

not the owner of the land at the time of the taking, the 

court concluded that he is not entitled to maintain an action 

in inverse condemnation against the City. The court further 

concluded tha.t the City had occupied the land in as open, 

conspicuous and notorious a manner as possible, considering 
the nature of the use, and had satisfied the other elements 

necessary to obtain an easement by prescription. The court 

concluded that the City had obtained an easement by 

prescription across Riddock's land. The court entered 

judgment against Riddock and in the City's favor. Riddock 

appeals. 

May plaintiff Riddock maintain an action for inverse 

condemnation, trespass and injunctive relief against the City 

for construction of a water pipeline in 1959 across lands 

then owned by the plaintiff's predecessor in interest? 

Riddock does not seriously contend that he is entitled 

to maintain an inverse condemnation action against the City. 

However, he contends that the City has not obtained a 

prescriptive easement and that he may therefore obtain an 

injunction against further use of his land by the City. He 

contends that there are remaining questions of fact on this 

issue. 

It is undisputed that Riddock was not the owner of the 

property when the pipeline was constructed in 1959. The 

owner at that time was the O'Connell Ranch Company, which is 

not a party to this action. The only person entitled to 

recover damages for condemnation is the owner of the land at 

the time of the taking. 3 Nichols On Eminent Domain § 8.5, 

at 8-97 (3d ed. 1981); Smith v. Northern Pacific Railway Co. 

(1919), 57 Mont. 14, 24, 186 P. 684, 686. The time of taking 

in the installation of an underground pipeline is when 

construction begins. Wickwire v. City & Borough of Juneau 

(Alaska 1976), 557 P.2d 783, 784. 

The rationale supporting the rule that only the owner at 

the time of the taking may maintain the action is that the 

right to compensation for a taking is a personal right which 
does not pass to a successor with the transfer of land, 

absent some form of assignment of the right itself. Smith, 

57 Mont. at 24-26, 186 P. at 687. Riddock does not contend 

that there was an assignment by OIConnell Ranch Company of 

any right to damages for inverse condemnation against the 

City of Helena. The District Court properly concluded that 

Kiddock was not entitled to bring an action against the City 

for inverse condemnation. 

While Riddock does not seriously question this 

conclusion, he does maintain that he has a right to 

injunctive relief. We emphasize the correctness of the 

District Court's conclusion on'the inverse condemnation issue 

because it provides the basis for resolving Riddock's claim 

for injunctive relief and, as prayed for in the complaint, 

damages for trespass or recovery of rental value. 

The landowner's only remedy for the City's construction 

of a pipeline on his land without obtaining an easement is an 

inverse condemnation action for just compensation for the 

value of the easement on the date of taking. Wickwire, 557 

P.2d at 784. In Wickwire, the court held that the plaintiff 

landowner could not maintain an action for trespass because 

the trespass necessarily results from the imposition of the 

easement and the claim for damages for the trespass is 

properly considered an element of the property owner's damage 

due to the condemnation. 557 P.2d at 784. 

In Brazil v. City of Auburn (Wash. 1980), 610 P.2d 909, 

the court held that a landowner whose land had been taken for 

a public roadway could not maintain an action for lost rent 

and injunctive relief, but that the only right of recovery 

was an action for inverse condemnation. 610 P.2d at 911-16. 

This rule allows the public entity to compensate the damaged 

landowner and keep the property interest taken. To allow the 
landowner injunctive relief would allow the landowner to 

defeat the City's power of eminent domain. This Court has 

previously applied the rule of Wickwire and Brazil. Smith, 

57 Mont. at 26, 186 P. at 687. 

Because the only remedy ava.ilable to a landowner under 

these circumstances is an action for inverse condemnation, 

and because only the landowner at the time of the taking is 

entitled to recover damages for the taking, Riddock has no 

claim against the City of Helena. Indeed, the City's 

construction of the water supply line did not harm Riddock; 

it harmed his predecessor, the OIConnell Ranch Company. The 

Ranch Company elected not to pursue its remedy against the 

City and when Riddock purchased the property, it was already 

burdened by the City's pipeline. 

We hold that plaintiff Riddock may not maintain an 

action for inverse condemnation, trespass or injunctive 

relief against the City for construction of a water pipeline 

in 1959 across lands then owned by the plaintiff's 

predecessor in interest. Accordingly, any potential fact 

issues related to such actions are immaterial. 

Did the City obtain an easement by prescription for its 

water pipeline across plaintiff's land? 

To establish a prescriptive easement, the owner of the 

purported dominant tenement must establish open, notorious, 

exclusive, adverse, continuous and unmolested use of the 

servient tenement for the full statutory period of 5 years 

required to acquire title by adverse possession. Garrett v. 

Jackson (1979), 183 Mont. 505, 508, 600 P.2d 1177, 1179. 

Further, prescriptive title once established is not divested 

by transfer of the servient estate. Garrett, 183 Mont. at 
509, 600 P.2d at 1180; O'Connor v. Brodie (1969), 153 Mont. 

Riddock contends that the City's use of the land for the 

pipeline was not adverse or under claim of right because the 

City recognized the landowner's rights when it acquired an 

easement for the pipeline from the O'Connell Ranch Company. 

-9 

We disagree. The easement obtained by the City recognized 

the lendowner's rights to the land covered by the easement. 

However, the landowner's grant of an easement over a specific 

tra.ct of land cannot be construed as creating a permissive 

right to use an entirely different strip of land. 

Riddock c0ntend.s that because the underground pipeline 

was not visible to him when he purchased the property nor 

visible throughout the prescriptive period, that the use was 

not open and notorious and the City did not obtain a 

prescriptive easement. 

A similar argument was addressed by this Court in 

0 ' Connor : 

" . . . defendants [landowners] argue that an 

underground water line does not have the element of 

open and visible use; that being underground there 

is no interference or conflict in use of the 

surface land. In brief, defendants contend there 

is no adverse occupancy such as exists where an 

easement is claimed for a roadway. 

"In answer -- to this contention we might --- ask in what 

further adverse manner could-plaintiffs occupy 

defendants' --- land with an underground water line? 

As this Court said in State v. Portmann [ (1967), 

149 Mont. 91, 95, 423 P.2d 56, 581: 'It is 

difficult to imagine in what manner land might be 

"occupied" with respect to an easement unless it be 

by actual use.'" O'Connor, 153 Mont. at 138, 454 

P.2d at 925 (emphasis added) . 

The City openly and visibly constructed the water supply line 

across the Ranch Company's land outside the easement granted 

to the City. The intended location of the pipeline was 

staked out for all to see. The District Court specifically 

found that there was nothing more the City could have done 
under the circumstances to put the landowner on notice of its 

use. Certainly these circumstances were sufficient to put 

the landowner on inquiry. As in O'Conner, we find the City's 

use was sufficiently open and notorious to support the 

District Court's finding of a prescriptive easement. 

Riddock argues, as did the defendants in O'Conner, that 

adverse occupancy did not exist because the circumstances of 

adverse use were insufficient to put a prudent man upon 

inquiry. Riddock contends that he is a pru.dent man, that he 

had a title search done which failed to show the existence of 

the pipeline, that his title insurance policy did not show 

any easement in favor of the City, and that visual inspection 

of the property did not indicate the presence of the 

pipeline. 

Riddock errs, however, in applying the prudent man test 

to himself rather than to his predecessor, against whom the 

City's prescriptive easement was obviously perfected. This 

Court's response to the prudent man argument in O'Connor is 

applicable here: 

"But whether the [landowner] had actual knowledge 

of the underground water line is immaterial for the 

reason that plaintiffs had acquired prescriptive 

title prior to the time [landowners] acquired their 

property. Prescriptive title once established is 

not divested by the subsequent transfer of the 

servient estate. The [landowners'] lack of 

knowledge, if any, of the underground water line is 

a matter which must be settled between the 

[landowners] and their grantor." 153 Mont. at 139, 

454 P.2d at 926. 

Here the City's prescriptive easement ripened before Riddock 

acquired title to the land crossed by the City's pipeline. 

Riddock's lack of knowledge of the pipeline is immaterial to 

this action. The record contains substantial uncontradicted 

evidence satisfying the elements necessary to obtain an 

easement by prescription. We find no error in the District 

Court's conclusion that the City of Helena obtained an 
easement by prescription for its water pipeline across 

plaintiff's land. 

The judgment the District 

We concur: 

94A62. &* 

Chief Justice 

Court is affirmed.