IN THE SUPREME COURT OF THE STATE OF MONTANA 

- DANIEL MASSE and JUSTINE 

MASSE, husband and wife, 

Plaintiffs and Respondents, 

- 

THE STATE OF MONTANA 

DEPARTMENT OF HIGHWAYS, 

Defendant and Appellant. 

- 

ORDER 

The Court has fully considered petition for rehearing 

filed by the State of Montana Department of Highways, and 

being fully advised finds that a correction should be made in 

the opinion originally issued. 

The opinion entitled Masse v. State of Montana 

Department of Highways published at 40 St.Rep. 730 should be 

corrected so that the fifth paragraph on page 733 of the 

opinion reads as follows: 

"The cause of action is one for negligence. The 

applicable statute of li-mitations is three years. 

Section 27-2-204 (1) , MCA. The statute of 

limitations commences to run when the cause accrues 

or, at the latest, on the date of discovery. 

Thompson v. Nebraska Mobile Homes Corp. (1982), 

Mont. --I , 647 P.2d 334, 338, 39 

St.Rep. 3.094, 1100. On remand, findings should be 

made regarding the date the Masses discovered facts 

which would give rise to a cause of action against 

the Department of Highways. Then, a conclusion 

should be drawn as to whether or not the original 

complaint was filed within three year-s of the date 

of discovery of facts which did, or through the 

exercise of reasonable care should have, apprised 

the Masses of the accrual of a cause of action 

against the Department of Highways." 

As amended the opinion is approved and the petition for 

a rehearing is denied. 

Chief Justice 

YI\ 
!do. 82--255 

IN THE SUPREPIE COURT OF THE STATE OF FIO1JTANA 

1983 

DANIEL lV1ASSF AND JUSTINE ,RIASSF, 

Husband b Wife, 

Plaintiff and Respons-ent, 

TI-IE STATE OF MOTJTAT4A , DEPF_RT.'?IENT 

OF Ei I GPIFZAY S , 

Derendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Mlssoula, The Honorable 

John S, Henson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Reate Galda, Dept. of ETighways, FTelena, Montana 

For Respondent: 

Terry ?q?allace, Flissoula, Montana 

- ---- ---- --- 

Submitted on Br~efs: March 3, 1993 

Decided: Clay 19, 1983 

Filed: MAY 19 1983 

- --- Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

An amended judgment was issued by the Fourth Judicial 

District Court on April 2, 1982, establishing the common 

boundary line between property owned by the Masses and a 

right-of-way belonging to the Montana Department of Highways. 

It also found that a negligent act by the Department of 

Highways proximately caused uncertainty regarding Masses' 

property line and awarded Masses $28,368.56 in damages, plus 

interest thereon at the rate of ten percent (10%) per annum. 

The Montana Department of Highways now appeals that amended 

judgment. We reverse and remand for a new trial. 

Daniel and Justine Masse were owners of real property 

located in Section 22, Township 12 North, Range 17 West, 

M.P.M. in Missoula County near Clinton, Montana. An 

interstate highway project, Clinton - East and West, was 

built in that area from 1970 to 1972 by Washington 

Construction, a contractor for the Department of Highways. 

During construction of the interstate, The Department of 

Highways' project manager and his crew staked locations along 

newly acquired right-of-way for later placement of 

right-of-way monuments by Washington Construction. The 

Department acquired new right-of-way from Masses' neighbor to 

the east, John Stitt, but acquired no new right-of-way from 

the Masses. Nevertheless, in October of 1972, a right-of-way 

monument was placed at the site of a stake on the Masse 

property at the section line between Sections 21 and 22. It 

was placed approximately three feet inside the existing fence 

bordering the Masses' property. 

In March of 1973, the Masses entered into an agreement 

with a real estate broker, Arthur J. Rapp, to sell their 

property. 
The survey firm of Ainsworth and Associates was hired in 

July of 1973 to resurvey the Masse property. Ignoring other 

survey monuments on the property, the survey crew utilized a 

right-of-way monument on the Stitt-Masse property boundary 

line and the right-of-way monument on the section line 

between sections 21 and 22 to conduct their survey. The crew 

determined that the Masse property encroached upon the 

Department of Highway's right-of-way. Specifically, the 

right-of-way boundary went across the porch of the Masses' 

business, Poor Henry's Bar. The listing agreement was 

voluntarily cancelled by both parties upon discovery of the 

encroachment. 

Mr. Rapp testified at trial that there had been 

prospective buyers of the Masse property and that he had been 

confident that he would find a ready, willing and able buyer. 

No exact fair market value for the property was given. 

Mrs. Masse testified that an $85,000 cash sale of the 

property was lost because of the boundary uncertainty. She 

also testified that the interest rate at that time was seven 

or eight percent. Mr. Masse testified that the property was 

offered for sale at $125,000 and that he had received several 

informal offers to buy. He believes he could have sold the 

property at that time had it not been for the boundary 

dispute. 

After completion of the Ainsworth survey, Mr. Ilasse 

traveled to Helena to discuss the boundary problem with 

representatives of the Department of Highways. The 

right-of-way monument on the section line between Sections 21 

and 22 on the Masse property, was removed by the Department 

of Highways on August 7, 1973. Mr. Masse contends that the 

removal of the monument increased the confusion over his 

boundary line. 
Pursuant to an agreement between the Masses and the 

Department of Highways, Charles W. Hegman, project manager 

and land surveyor with the Department of Highways, resurveyed 

the highway right-of-way in the spring of 1975. The survey 

was filed in February of 1976 as Certificate of Survey No. 

777. That survey showed no property belonging to the Masses 

encroaching upon the highway right-of-way. The right-of-way 

line was three feet south of the porch of Poor Henry's Bar. 

Although the Department of Highways apparently considers 

Certificate of Survey No. 777 to accurately represent the 

highway right-of-way, the State of Montana has refused to 

acknowledge that line as the boundary between the highway 

right-of-way and Masses' property. Another survey was 

conducted by Mr. Hegman in 1981 at the request of the 

Department of Highways. The Masses' boundary line was 

determined to lie approximately 3% feet north of the highway 

right-of-way. 

The Masses sold part of their property in December 1976 

for $142,111. The sale was based on the 1973 Ainsworth 

survey and subject to the pending right-of-way dispute. 

Masses filed a complaint against the Department of 

Highways on October 19, 1977, alleging that the Department 

and its agents "illegally confiscated, claimed and used 

property of the Plaintiffs." The complaint requested 

compensation for loss of interest on frustrated sales, loss 

of the value of land illegally confiscated, loss due to 

illegal and continuing trespass, and other expenses. 

Trial was held before a district judge on February 17 

and 18, October 5 and 19, and December 1, 1981. At the close 

of their case-in-chief, October 19, 1981, Masses moved for 

leave to amend the pleadings to conform to the evidence. The 

Department of Highways responded by raising statutes of 
limitations and sovereign immunity defenses. The motion to 

amend the pleadings was granted and the cause of action 

became one in negligence. 

Forty-four findings of fact and eleven conclusions of 

law were issued by the trial court on January 8, 1982. 

Pursuant to a motion to amend by the Department of Highways, 

amended findings of fact, conclusions of law and judgment for 

Masses were entered April 2, 1982. The amended judgment 

established the boundary line shown in Certificate of Survey 

No. 777 as the correct boundary line between the Masses' 

property and the Department of Highways' right-of-way. 

The Department of Highways was found to have negligently 

and erroneously placed a right-of-way monument on the section 

line between Section 21 and 22 on Masses1 property. That 

negligent act was found to be the proximate cause of the 

uncertainty of Masses' boundary line. The uncertainty in the 

boundary line was found to be the proximate cause of lost 

sales of Masses' property. Masses were awarded compensation 

representing their lost interest payments on a potential 1973 

contract for sale of their property and expenses accrued in 

resolving the boundary dispute. 

The Department of Highways raises the following issues 

in this appeal of the judgment: 

1. The District Court erred in finding the defendant 

liable for damages. 

A. The plaintiffs' causes of action sounding in 

tort are barred by the statute of limitations 

and sovereign immunity. 

B. The remaining causes of action are unsupported 

by the evidence. 

2. The District Court's findings of fact and conclusions of law are not supported by the evidence. 
3. The evidence does not support the damages awarded 

by the District Court. 

We reverse and remand for a new trial on the statute of 

limitations defense and the damages issue. 

The Department of Highways raised a statute of 

limitations defense at trial. The trial court did not 

address the defense when it was raised or in its findings of 

fact and conclusions of law. We are unable to determine why 

the trial court considered the statute of limitations not to 

have run prior to the filing of the original complaint on 

October 19, 1977. 

The cause of action is one for negligence. The 

applicable statute of limitations is three years. Section 

27-2-204 (1) , MCA. The statute of limitations commences to 

run when the cause accrues or, at the latest, on the date of 

discovery of the cause of action. Thompson v. Nebraska 

Mobile Homes Corp. (1982), Mont . -1 - , 647 P.2d 334, 

338, 39 St.Rep. 1094, 1100. On remand, findings should be 

made regarding the date the Masses discovered they had a 

cause of action against the Department of Highways. Then, a 

conclusion should be drawn as to whether or not the original 

complaint was filed within three years of the date of 

discovery. 

The Department of Highways alleges that seventeen 

findings of fact and nine conclusions of law are not 

supported by the evidence. "The function of this Court is to 

determine whether there is sufficient evidence to support the 

district court's findings and those findings will not be set 

aside unless there is a clear preponderance of evidence 

against them. l1 Kearns v. McIntyre Construction Co. (1977) , 

173 Mont. 239, 249, 567 P.2d 433, 438. We have reviewed the 

record and have found either harmless error or sufficient 
evidence to support each of the findings except the one 

pertaining to damages. 

There was insufficient evidence in the record to support 

the District Court's finding that Masses lost a $125,000 

contract sale of their property because of the boundary 

dispute. On remand, Masses must show that they had a 

prospective buyer who would have purchased their property for 

a specified price but for the boundary dispute or otherwise 

present damage testimony which supports the trial court's 

findings. 

Finally, the District Court improperly awarded Masses 

interest on this judgment. Section 2-9-317, MCA. 

Reversed and remanded for ne 

We concur: 

Chief Justice 

/