No. 91-307 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

LORRAINE KNIGHT and THE ESTATE OF FORD KNIGHT, SAM MILLER and 

KRISTINE MILLER, LOIS BLEVINS and THE ESTATE OF KENNETH BLEVINS, 

RONALD BLOOMQUIST and KARI BLOOMQUIST, RICHARD BORDER and SONJA 

BORDER, VIRGINIA CLINKER and THE ESTATE OF CHARLES CLINKER, KARL 

COLEMAN and KAREN COLEMAN, WAYNE HIETT and CORA HIETT, THOMAS 

HOSHAW and DOROTHY HOSHAW, WAYNE KNUTSON and DOROTHY KNUTSON, 

PEGGY KURTZ, ROBERT MULLENDORE and TANA MULLENDORE, JAMES 

MUNRO and NANCY MUNRO, KEVIN MURPHY and JUDY MURPHY, LEON SPITZ 

and CATHY SPITZ, THOMAS TAYLOR and JOANNE TAYLOR, GORDON SPRING 

and PATTI SPRING, THERESA COX, 

Plaintiffs and Appellants, 

VS 

The CITY OF MISSOULA, the COUNTY OF MISSOULA, 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William C. Watt; Mullendore and Watt, Missoula, 

Montana. 

For Respondent: 

Sarah M. Power: Gough, Shanahan, Johnson & Waterman, 

Helena, Montana; Jim Nugent, Missoula City 

Attorney, Missoula, Montana. 

Submitted on Briefs: December 31, 1991 

Decided: March 10, 1992 

Filed: 
Justice R. C. McDonough delivered the Opinion of the Court. 

Plaintiffs, Lorraine Knight, et al. (Knight), appeal from an 

order of the Fourth Judicial District, Missoula County, granting 

summary judgement in favor of the defendant, City of Missoula. 

Knight initiated nuisance and constitutional claims against the 

City of Missoula seeking closure of a dirt road and damages for 

injuries claimed to result from the creation and use of the dirt 

road. The District Court dismissed all of Knight's claims as a 

matter of law. We affirm in part, reverse in part, and remand for 

further proceedings. 

Knight raises the following issues for our review: 

1) Did the District Court err by dismissing Knight's 42 U.S.C. 5 

1983, claim? 

2) Did the District Court err by dismissing Knight's inverse 

condemnation claim? 

3) Did the District Court err by dismissing Knight's nuisance 

claim? 

This case involves a dirt road, currently known as Pineridge 

Drive, that was cut through a park at the end of Knight's road, 

Takima Drive, in 1957. Both Takima and Pineridge Drive lie within 

the plat of the 'Far Views Homesites, Missoula County, Montana, 

Addition No. 1' , which was platted and approved September 21, 1945. 

The 1945 plat dedicates the area in which Pineridge Drive lies as 

Hemayagen Public Park. A 1955 replat, titled 'Pattee Canyon 

Addition No. 2, to Far Views Homesites', shows Takima Drive as a 

dead-end street. Pineridge Drive first appears in a replat 
entitled 'Far View Homesites, Addition G-1' approved December 19, 

1957. Pineridge rive remained entirely within the County of 

Missoula until January 6, 1958, when by resolution No. 2000, the 

City of Missoula annexed a portion of land through which the road 

passes. 

Knight contends that the 1957 dedication of Pineridge Drive 

was approved in violation of substantive and procedural laws. 

Several affidavits offered by residents of Takima Drive maintain 

that when the road was initially made, they were given assurances 

that it would be temporary. No formal actions were taken by 

residents of Takima Drive that the road was illegal and should be 

closed prior to October 2, 1984, when this action was filed. On 

June 12, 1989, the Missoula City Council held a public hearing and 

voted 11-1 to deny a closure petition made by Takima residents. 

There is evidence to support that Pineridge Drive has created 

increased traffic, dust, noise, and runoff problems. These problems 

allegedly have caused a variety of health problems, physical 

danger, and the loss of use and enjoyment of the plaintiffs1 homes 

and adjacent property. Knight contends that because the road was 

illegally established it should be permanently enj oined and that 

the plaintiffs are entitled to damages for the roadfs continued 

use. 

I. 

Knight alleges that Pineridge Drive was illegally created 

because it runs through a public park and there was a failure to 

provide public notice and/or a public hearing prior to vacating a 
portion of the park and establishing the road. Furthermore, Knight 

alleges that the road was created by the developer without approval 

from any authority. The alleged illegality of the road and the 

dust, drainage, traffic and safety problems allegedly associated 

with the road are argued to constitute interference with the 

Knight s Fourteenth Amendment right to enjoy property. As such, 

Knight claims, the creation of and the City's refusal to close the 

road are actionable under 42 U.S.C. 3 1983, which provides that 

every person wha under color of state law, deprives another of 

rights secured by the U.S. Constitution or federal law, is liable 

for damages in an action at law or in equity. 

The District Court held that any challenges regarding creation 

of the road are barred by the statutes of limitations. The court 

reasoned that the cause of action against creation of the road 

accrued against the City of Missoula in 1958 when annexation 

proceedings were completed. Because twenty seven years passed from 

the time this action accrued until the time this action was filed, 

in 1984, the action was determined to be barred. Furthermore, the 

District Court ruled that Knight presented no admissible evidence 

of facts necessary to raise a genuine factual dispute regarding the 

elements of a 5 1983 claim and thereby the claim failed as a matter 

of law. 

Section 27-2-102(1)(a), MCA, provides that a claim or a cause 

of action accrues when all elements of the claim exist or have 

occurred, the right to maintain an action on the claim is complete 

and a court is authorized to accept jurisdiction. Section 27-2- 
102 (31, MCA, states: 

The period of limitation daes not begin on any claim or 

cause of action for an injury to person or property until 

the facts constituting the claim have been discovered. ... 

Statutes of limitation commence to run when the cause accrues or, 

at latest, on date of discovery of facts which would give rise to 

cause of action. Masse v. State Department of Highways (29831, 204 

Mont. 146, 664 P.2d 890. Section 1983 claims accrue when the 

plaintiff knows of the injury which is the basis for the action. 

Harvey v, Pomroy (D. Mont. 1982), 535 F. Supp. 78, 81. 

In regards to Knight's claims arising from the creation of the 

road, the cause of action accrued when the road was created. 

Affidavits submitted by Knight indicate the Takima residents were 

aware of the creation of the road even as the bulldozer was at 

work. We agree with the District Court that the action against the 

City accrued at the time the City annexed the road. Section 27-2- 

207, MCA, is the statute of limitations for actions involving the 

injury to real property, and provides that an action must be 

brought within two years from the time the action accrues. 

Knight offers evidence that representations were made to 

several Takima residents that the road was temporary in order to 

aide in construction of other houses in the sub-division. Montana 

has recognized the doctrine of fraudulent concealment as tolling 

the statute of limitations until the cause of action is discovered 

or could have been discovered through due diligence. Johnson v. St. 

Patrick's Hospital (1966), 148 Mont. 125, 129, 417 P.2d 469. 

However, there is no evidence nor claim of fraud presented in this 
action. When construction was completed, and thereafter, the 

~akima residents were aware of and continued to complain of the 

creation of the road and the problems arising therefrom. These 

problems are the facts upon which Knight now bases the 1983 

claim. 

We conclude that Knight's 5 1983 claim arising from the 

alleged illegal creation of Pineridge Drive is barred by 5 27-2- 

207, MCA. We further conclude that there was no fraudulent 

concealment tolling the statute of limitations. 

Turning now to the maintenance of and refusal to close 

Pineridge Drive, Knight alleges that the City of Missoula acted in 

an arbitrary and capricious manner violating the guarantees of 

substantive due process and Knight's constitutional right to enjoy 

property. Knight contends that the continued use of Pineridge 

Drive and failure to close the road are actions committed under the 

color of state law, deprives the Takima residents of property 

rights guaranteed by the Fourteenth Amendment and therefore is 

actionable under 5 1983. We disagree. 

The United States Supreme Court, in companion cases construing 

the applicability of 42 U.S.C. 5 1983, to negligence actions, held 

that the due process clause is not implicated by the negligent act 

of an official causing unintended loss to life, liberty or 

property. Daniels v. Williams (19851, 474 U.S. 327, 328; Davidson 

v. Cannon (1985), 474 U.S. 344, 347. Essentially, when state tort 

law remedies are held to satisfy due process requirements in 

negligence actions, a § 1983 action does not rise. However, if the 
challenged government action is so egregious, and 'shocking to the 

conscious' so as to constitute a depravation of fundamental due 

process, the availability of a state remedy does not bar federal 

relief under 5 1983. Rutherford v. City of Berkeley (9th Cir. 

1986), 780 F.2d 1444, 1448. The Ninth Circuit has held that: 

To establish a violation of substantive due process, the 

plaintiffs must prove that the government's action was 

"clearly arbitrary and unreasonable, having no 

substantial relation to the public health, safety, morals 

or general welfare" (citations omitted) Sinaloa Lake 

Owners Association v. City of Simi Valley (9th Cir. 

1989), 882 F.2d 1398, 1407. 

In the case at bar, we do not find the actions of the City of 

Missoula to be egregious, shocking to our conscious, arbitrary nor 

capricious. To the contrary, the City held an open public meeting 

where testimony was received both in support of and against the 

proposed resolution to close the road. After some debate, the City 

Council voted down the request to close Pineridge Drive. Knight 

was afforded opportunity to be heard and the City Council appears 

to have carefully considered the issue in the context of promoting 

the general public welfare. 

The issue regarding the continued use and maintenance of 

Pineridge Drive is merely a question of negligence not giving rise 

to a federal claim under 5 1983. Furthermore, Knight has available 

adequate state remedies that pursuant to this opinion may be 

sought. We conclude that all claims under 42 U.S.C. 9 1983, should 

be and are dismissed. 

11. 

In the second amended complaint, Knight alleged that: 
the interference with the use and enjoyment of 

plaintiffst property resulting fromthe construction, use 

and refusal to close the dirt road constitutes a taking 

and damage to Plaintiffst private property without just 

compensation in contravention of [U.S. and Montana 

Constitutions] and entitles Plaintiffsto recover damages 

and expenses of litigation. 

The District Court ruled, and for reasons provided above, we affirm 

that any claim arising from the creation of the road is barred by 

the statute of limitations. However, there remains the portion of 

Knight's claim arising from the existence, the use, and the City's 

refusal to close the road. The District Court found, on the basis 

of facts presented, that the takings claim arising from "increased 

traffictt and the resultant increase in "noise dust and fumes, etc." 

was not barred by the statute of limitations. There is evidence 

that the problems intensified in 1982 when a nearby road was 

apparently closed for resurfacing. 

Nonetheless, the District Court ruled that this Courtts 

holding in Adams v. Department of Highways (1988), 230 Mont. 393, 

753 P.2d 846, precludes a finding of a taking without just 

compensation for increased traffic and the resultant increase in 

noise, dust, and fumes, etc., when no physical taking has occurred. 

As such, the District Court granted summary judgment finding that 

even if all that Knight alleges is true, the City of Missoula is 

entitled to judgment as a matter of law. 

Adams, involved a situation in which the widening of a road 

caused similar problems of dust, traffic increase and so forth as 

alleged in the instant case. In Adams, we held that damage caused 

by the traffic increase was non-compensable and that a taking had 
not occurred. However, in Adams, we emphasized that our conclusion 

was based on the facts of that case. Specifically, the property was 

adjacent to an already improved highway in an area zoned for 

residential commercial use. We stated that although there may 

have been a diminution in value of the property as residences, 

there was an increased commercial value. Adams v. Department of 

Highways (1988), 230 Mont. 393, 401. We stated further that: 

"Noise, light, vibration, and fumes from traffic on 

modern four-lane highways are inconveniences that are 

reasonably incident to the prosecution of necessary 

public enterprises' and as such must be and are borne by 

the public at large." (Citation omitted.) Adams, 230 

Mont. at 403. 

We conclude that the District Court erred in its broad reading 

and application of Adams to the instant case which involves a dirt 

road in a residential area and cannot be dismissed as a matter of 

law on the basis of a potentially increased commercial value. 

Adams, does not stand for the proposition that takings claims 

arising from increased traffic and the effects thereof are to be 

dismissed as a matter of law. We emphasized that a factual 

determination was necessary to determine if: 

the interference caused by increased traffic, . . . is of 

direct, peculiar and sufficient magnitude to allow for 

compensation". 

In addition, quoting 'Nichols on Eminent Domain' we added: 

"Personal inconvenience or discomfort to the owner or 

interference with the business conducted on the land is 

not compensable unless such results are causative factors 

in the depreciation in value of the land." Adams, 230 

Mont. at 399; citing 2A Nichols on Eminent Domain Section 

6.31[2], pp. 6-221-6-222. 

We conclude that Aa, makes clear that there are certain, though 
limited, circumstances in which problems associated with increased 

traffic may be cornpensable under the doctrine of inverse 

condemnation. 

Generally, acts conducted in the proper exercise of a police 

power do not constitute a taking of property and do not entitle the 

owner for compensation for any impairment to such property. 

Yellowstone Valley Elec. Co-op, Inc. v. Ostermiller (1980), 187 

Mont. 8, 608 P.2d 491. If state action is a proper exercise of the 

police power and is directly connected with manners of public 

health, safety and welfare, a reasonable burden may be imposed on 

private property. State Department of ~ighways v. City of Helena, 

(Mont. 198l), 632 P.2d 332, 38 St.Rep. 1283. Section 7-14-4101, 

MCA, clearly authorizes road construction as a governmental 

function of a municipality. Setting Knight's claim of illegal 

creation aside, there can be no doubt that the City of Missoula 

has, within its granted powers, the authority to open and close 

roads in its jurisdiction. However, valid exercise of police 

power, standing alone, does not prevent an inverse condemnation 

suit. Knight v. Billings (l982), 197 Mont. 165, 642 P.2d 141. 

In Knisht, the residents of a residentially zoned street 

requested a change in their zoning after their street had grown 

from a quiet, two lane residential area to a five lane 

commercialized area. The city denied the request and an inverse 

condemnation suit was brought alleging similar problems of 

increased traffic, noise and dust. We held that despite the fact 

the city had validly exercised its powers to widen the road and to 
deny the request to rezone, the diminution in property value (20- 

30%) entitled the appellants to compensation. However, our decision 

was based on the fact that expansion of the road had necessitated 

the physical taking and compensation for homes immediately across 

the street. 

There remains a factual question of whether or not the alleged 

increased traffic and resulting problems on Pineridge Drive have 

caused a depreciation in the value of the Takima residents' 

property such that it gives rise to compensation under the 

standards discussed above. 

Rule 56(c), M.R.Civ.P., instructs the court that summary 

judgment should be granted when: 

the pleadings, depositions, answers to interrogatories, 

and admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any 

material fact and that the moving party is entitled to a 

judgment as a matter of law. 

On review, this Court applies the same standard as the district 

court in reviewing a grant or a denial of a motion for summary 

judgment. Kronen v. Richter (1984), 211 Mont. 208, 683 P.2d 1315. 

A party opposing a motion for summary judgment must present facts 

of a substantial nature; speculative statements are insufficient to 

raise a genuine issue of material fact. Brothers v. General Motors 

Corp. (1983), 202 Mont. 477, 658 P.2d 1108. 

A property owner may recover in an inverse condemnation action 

where actual physical damage is proximately caused to his property 

by a public improvement as deliberately planned and built. Rauser 

v. Toston Irrigation Dist., 172 Mont. 530, 565 P.2d 632, citing 
Albers v. County of Los Angeles, 62 Cal.2d 250, 42 Cal.Rptr. 89, 

96, 398 P.2d 129, 136; 20 Hastings Law Journal 431. It is 

implicit in inverse condemnation that the extent of damage be of 

such a degree as to amount to a taking of an interest in the 

property damaged. Rauser, 172 Mont. at 539, citing Albers, 398 P. 2d 

at 136. We held in Kniqht, that the measure to be used for 

damages in an inverse condemnation action is the change in the fair 

market value of the property from before to after the condemnation. 

The District Court found that Knight offered very little 

admissible proof of their claim, doubting that enough evidence was 

presented to raise a genuine factual issue. We have reviewed the 

record and disagree. Affidavits submitted clearly provide a 

factual basis for problems associated with traffic, dust and 

runoff. Furthermore, in Knight's complaint, it is alleged that 

"the value of the property is substantially dirnini~hed.'~ Support 

of this allegation is provided in affidavits which add that 

Pineridge Drive: 

has greatly affected [our] property value 

and 

we believe that our property has been devalued 

significantly. There is no question in my mind that 

anyone looking at buying our property would lower their 

estimation of its value . . . 

We conclude that these statements are sufficient to raise a 

genuine issue of material fact regarding diminution of the property 

value. Whether or not there has been a diminution in the value of 

Knight's property and whether or not the traffic, dust and runoff 

problems are of a significant magnitude that compensation is due, 
are questions of fact. Knight has satisfied his burden of 

introducing evidence that places these questions of material fact 

at issue. 

Therefore, the District Court's grant of summary judgment 

denying the inverse condemnation claim is in error and we reverse. 

111. 

Knight alleges that the creation, continuing use, and lack of 

maintenance of Pineridge Drive constitutes a public nuisance which 

is specifically injurious to the plaintiffs. Knight seeks to have 

the use of the road enjoined and to recover damages. The District 

Court held that even if the road were to constitute a nuisance, 

Knight's claim is barred by the statutes of limitations and the 

City's immunity from suit. 

The District Court found the applicable statutory period to be 

two years for injury to property and three years for any torts. The 

court stated that: 

any liability which the City of Missoula might have 

incurred on the grounds that the road in question is a 

public nuisance is limited by the applicable Statutes of 

Limitations to injury, which occurred within the 

statutory period immediately preceding the filing of 

Plaintiffs' original Complaint. 

In other words, the court concluded that any injuries sustained, 

based on a nuisance claim, prior to October 3, 1981, were time 

barred. Furthermore, the court concluded that 5 2-9-111, MCA, 

provided immunity to the City after its July 1, 1977 effective date 

and therefore any nuisance claim arising after October 3, 1981, was 

dismissed on this basis. 

In nuisance actions, if the nuisance is of a temporary, 

13 
continuing nature, the statute of limitations is tolled until the 

source of the injury is abated. Graveley Ranch v. Scherping 

(l989), 240 Mont. 20, 782 P.2d 371. In contrast, if the nuisance is 

permanent, the action accrues at the time the cause of the action 

is discovered. The District Court found that the instant case 

involved a permanent nuisance because Knight was complaining about 

the same problems with the road at the time it was built as he 

complains of 27 years later in this action. We disagree. 

We have held that a nuisance is a continuing nuisance when: 

. . . at all times, the City could have abated the 

nuisance by taking curative action. Since the nuisance 

was so terminable, it cannot be deemed to be a permanent 

nuisance as of the creation date. . . 

Walton v. City of Bozeman (l978), 179 Mont. 351, 356, 588 P.2d 518, 

521. In Graveley, we found the presence of exposed lead batterys 

to be a continuing nuisance because the hazardous situation could 

have been readily abated at any time by their removal. InWalton, 

the City of Bozeman relocated an irrigation ditch and constructed 

a storm sewer which caused annual flooding of plaintiff's land. We 

concluded that it was a continuing nuisance because the flooding 

was terminable by taking curative action such as cleaning the 

diversion box. Walton, 179 Mont. at 356. 

In the instant case, the City could have and may readily abate 

the problems by closing, paving, or otherwise maintaining Pineridge 

Drive. Therefore, we conclude that this case involves a continuing 

nuisance and the statute of limitations is tolled until the 

nuisance is abated. 

The City of Missoula held a public hearing to address the 

14 
Takima residents1 proposed resolution to abate the alleged nuisance 

by closing Pineridge Drive. Upon motion, the resolution was 

denied. The City of Missoula claims that "the language in 5 2-9- 

111, MCA, clearly immunizes the City of Missoula from any claims 

against it arising out of the actions of its City Council." 

Section 2-9-111, MCA, as amended in 1991, provides in pertinent 

part: 

Immunity from suit for legislative acts and omissions. 

(1) As used in this section: 

(a) the term fvgovernmental entityv' means. . . municipalities, and any other local government entity or 

local political subdivision vested with legislative power 

by statute; 

. . . 

(c) (i) the term tTlegislative acttv means: 

(A) actions by a legislative body that result 

in creation of law or declaration of public policy; 

(ii) the term legislative act does not include 

administrative actions under-taken in the execution 

of a law or public policy. 

(2) A governmental entity is immune from suit for a 

legislative act or omission by its legislative body ... 

There is no dispute that the Missoula City Council is a 

governmental entity within the meaning of 4 2-9-lll,(l)(a), MCA. 

However, the 1991 amendments to 5 2-9-111, MCA, make clear that a 

governmental entity is no longer immune for gLJ of its actions. 

Under § 2-9-111, MCA (1991), a governmental entity is immune from 

suit for its legislative acts or omissions but not for its 

administrative acts. The statute provides, and we have held, that 

a legislative act is an action by a legislative body which results 

in creation of law or declaration of public policy. 4 2-9-111, 

MCA, Dagel v. City of Great Falls (Mont. 1991), 819 P.2d 186, 48 

St.Rep. 919. In contrast, the statute provides that an 
administrative act is one taken in the execution of a law or 

policy. Section 2-9-111(1)(c)(ii), MCA. 

The City of Missoula and the District Court characterized 

Knight's claims in two categories: (1) objections to the manner in 

which the road was created, and (2) objections to the failure of 

the City to grant the Takima residents' desires to close the road. 

We note that the nuisance claim arises not only from the creation 

of Pineridge Drive and the denial of the proposed resolution, but 

also, more accurately, from the manner in which the City has 

maintained Pineridge Drive. 

We have long held that the duty of a city in connection with 

the maintenance of its streets is an administrative function of the 

city. Griffith v. City of Butte (1925), 72 Mont. 552, 234 P. 829; 

Sullivan v. City of Helena (1890), 10 Mont. 134, 25 P. 94; Snook v. 

City of Anaconda (1901), 26 Mont. 128, 66 P. 756; Ford v. City of 

Great Falls (1912), 46 Mont. 292, 127 P. 1004. 

We have also consistently held that a governmental entity is 

entitled to no more deference than a private citizen in matters of 

creating a public nuisance. Murray v. City of Butte (1907), 35 

Mont. 161, 88 P. 789; Lennon v. City of Butte (19231, 67 Mont. 101, 

214 P. 1101; Walton v. City of Bozeman (1978), 179 Mont. 351, 588 

P.2d 518. "There is no doubt that a city is liable for damages 

with respect to maintaining a nuisance in the same manner as a 

private person.lr Walton, 179 Mont. at 356. 

The City of Missoula points to the language of 5 27-30-101(2) 

which states: 
Nothing which is done or maintained under the express 

authority of a statute can be deemed a nuisance. 

The power to close a road is specifically within the powers granted 

to the City under 4 7-14-4101, and 5 7-14-4114, MCA, and as such, 

the City argues, cannot be deemed a nuisance. However, liability 

for nuisance cannot be avoided on the ground that a city was 

exercising governmental powers because when a governmental entity 

in its method of administration of such powers creates a nuisance 

it is not exercising the governmental function but is doing 

something forbidden by law. Speiser, The American Law of Torts, 

Vo1.2, 5 6:14. It is a generally recognized exception to the rule 

of sovereign immunity that the immunity does not extend to a suit 

for the abatement of a nuisance. 58 Am.Jur.2d Nuisance, 4 55. 

Furthermore, 4 2-9-102, MCA, provides that: 

Every governmental entity is subject to liability for its 

torts... whether arising out of a governmental or 

proprietary function except as specifically provided by 

the legislature under Article 11, section 18, of The 

Constitution of the State of Montana. 

We conclude that maintenance of Pineridge Drive is an 

administrative act of the City of Missoula for which 5 2-9-111, 

MCA, provides no immunity. Furthermore, we conclude, consistent 

with our previous decisions, that a municipality is not immune from 

nuisance claims. 

Section 27-30-101(1), MCA, defines nuisance as follows: 

(1) Anything which is injurious to health, indecent or 

offensive to the senses, or an obstruction to the free 

use of property, so as to interfere with the comfortable 

enjoyment of life or property, . . . is a nuisance. 

Affidavits submitted by Knight state that at least several of the 
Takima residents are experiencing problems with the increased 

traffic, dust and runoff, which would give rise to a nuisance 

claim. Reviewing all of the evidence in a light most favorable to 

Knight, a prima facie claim of nuisance has been made. Therefore, 

there is a genuine issue of material fact and summary judgment is 

inappropriate. 

The District court is reversed on this point and this case 

remanded for further proceedings not inconsistent with this 

decision. 

Affirmed and reversed. 

We Concur: 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 91-307 

LORRAINE KNIGHT, et al., 

Plaintiffs and Appellants, 

-vTHE CITY OF MISSOULA and 

THE COUNTY OF MISSOULA, 

1 

1 ORDER 

Defendants and Respondents. 

i ' *.$ &k 8 r, 3. &-. ,tim ET 

fy <:id TAN.4 

Defendant and Respondent, the City of iss sou la', has filed a 

petition for rehearing in the above cause; and Plaintiffs and 

Appellants, Lorraine Knight, et al., have filed their response. It 

is requested in the petition for rehearing that this Courtls 

opinion in the above cause be clarified. The petition for 

rehearing and request for clarification; and the response having 

been considered by this Court, 

IT IS ORDERED that Opinion No. 91-307, dated March 10, 1992, 

is clarified on page 8 as follows: 

The District Court ruled, and for reasons provided above, 

we affirm that any claim arising from the creation of the 

road is barred by the statute of limitations. However, 

there remains the portion of Knight's claim arising from 

the existence. the use. and the CitvTs refusal to close ............ >. .: the road. The District Court xuZedZ.on the basis of facts 

presented , takings and the 

resultant increase in llnoise dust and f 

not barred by the statute of limitations L;&w 

.... , There is evidence that the problems 
IT IS FURTHER ORDERED for rehearing is denied. 

DATED this 
March 10, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Philip D. Tawney and William C. Watt 

MULLENDORE & TAWNEY 

P.O. Box 9380 

Missoula, MT 59807 

Martha McClain 

Deputy Missoula County Attorney 

County Courthouse 

Missoula. MT 59802 

Jim Nugent 

Missoula City Attorney 

201 West Spruce 

Missoula, MT 59802 

Sarah M. Power 

GOUGH, SHANAHAN, JOHNSON & WATERMAN 

P.O. Box 1715 

Helena, MT 59624 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA