No. 87-148 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IVAN and GERALDINE ADAMS , et a1 . , 

Plaintiffs and Appellants, 

-vsTHE DEPARTMENT OF HIGHWAYS OF THE 

STATE OF MONTANA, and MISSOULA COUNTY, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Milodragovich, Dale & Dye; Lon Dale argued, Missoula, 

Montana 

For Respondent: 

Steve Garrison argued, Dept of Highways, Helena, 

Montana 

Robert Deschamps, 111, County Attorney; Joan Newman 

argued, Deputy, Missoula, Montana 

For Amicus Curiae: 

Jim Nugent, City Attorney, League of Cities & Towns, 

Missoula, Montana 

Submitted: December 8, 1987 

Decided: February 18, 1988 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

This is an appeal from the Fourth Judicial District, 

Missoula County. Summary judgment was granted 

defendants/respondents Missoula County (County) and the State 

of Montana (State) on an inverse condemnation claim brought 

by landowners who lived close to Reserve Street in Missoula, 

Montana. The landowners, Ivan and Geraldine Adams and a 

number of other property owners (Landowners), appeal. 

We affirm. 

The issues are as follows: 

1. Did the District Court err in granting summary 

judgment to the County because the County could not be found 

liable as a matter of law in inverse condemnation for 

construction on a federal-aid secondary state highway? 

2. Did the District Court err in granting summary 

judgment on the merits because Landowners suffered no 

compensable injury under Montana law? 

3. Did the District Court err in granting summary 

judgment to the State as a matter of law on statute of 

limitations for inverse condemnation and laches? 

This suit arose out of the construction of a bridge on 

Reserve Street in Missoula. The completion of the bridge 

allowed for a west-side thoroughfare between Highway 93 on 

the south of Missoula and Interstate 90 on the north. 

Landowners are a number of Missoula property owners who own 

property adjacent to Reserve Street. Prior to the opening of 

the bridge on June 19, 1979, Reserve Street was a rural 

neighborhood with occasional traffic. After the opening, 

there was immediate traffic increase, including heavy trucks, 

and an increase of noise, air pollution, and dust 

accumulation. Some of the Landowners claim respiratory 
problems due to this increase along with adverse consequences 

of pollution, excessive noise, dust, and inability to 

conveniently ingress and egress. The gravamen of their claim 

is based on property devaluation. 

Reserve Street was originally designated as a 

federal-aid secondary highway system and is a state highway. 

No part of the construction of the Reserve Street Bridge 

project occurred any closer than one-quarter of a mile away 

from any residence of the Landowners. The right-of-way was 

"granted and donated to the use of the public forever" prior 

to purchase by any of the landowners. No right-of-way had to 

be acquired by the State and therefore no eminent domain 

proceedings ever were instituted. 

Due to increased traffic on Reserve Street, the 

Missoula County Commissioners, after two years of planning 

and public hearings, adopted new zoning regulations 

permitting single and multi-family residential, professional 

offices and commercial development upon application for, and 

receipt of, a permit for specific use. 

This suit is based on inverse condemnation alleged to 

have been caused by the increased traffic. The complaint was 

filed January 26, 1984 with no claim that the zoning was a 

taking, regulatory or otherwise, nor does it attempt to 

invalidate the zoning of the area. The complaint was filed 

over four years and seven months after the bridge was opened. 

A motion to dismiss was filed by the State. On 

February 2, 1986, the District Court denied the motion to 

dismiss stating it was undecided whether a statute of 

limitations barred the claim and it was unclear whether the 

case of Knight v. Billings (1982), 197 Mont. 165, 642 P.2d 

141, with the most important discussion of inverse 

condemnation under Montana law, applied. 
The State and County filed motions for summary judgment 

in June of 1986. The District Court granted the County's 

motion for summary judgment on October 28, 1986 on grounds 

that, despite having input in to the construction of highways 

in its area, the County did not have legal authority nor 

legal responsibility on final decisions as to where and how 

construction of federal-aid highways occurred. The State's 

motion for summary judgment was granted January 13, 1987 

based on the statute of limitations and violation of the 

doctrine of laches along with a statement of 

noncompensability. 

Landowners noticed a hearing and filed a motion for 

reconsideration on January 19, 1987. A hearing was held 

January 28, 1987 and despite objections of the State, 

Landowners presented a number of exhibits and called numerous 

witnesses. The County was never formally served for the 

hearing on this motion but did have individuals in 

attendance. 

Despite the additional evidence, no modification action 

was taken by the District Court within 45 days and therefore 

the motion was deemed denied and Landowners filed this 

appeal. 

The standard of review on summary judgment has been 

made clear by this Court. 

On review, we will uphold the summary 

judgment if there is no genuine issue of 

material fact and the evidence shows the 

moving party is entitled to judgment as a 

matter of law. Sevalstad v. Glaus (Mont. 

1987), 737 P.2d 1147, 1148, 44 St.Rep. 

930, 932. . . 

When the movant has met this initial 

burden, the party opposing the motion 

must supply evidence supporting the 

existence of a genuine issue of fact. 

Flemming v. Flemming Farms, Inc. (Mont. 
1986), 717 P.2d 1103, 1106, 43 St.Rep. 

776, 779. Rule 56 (c) , M.R.civ.P. 

Vogele v. Estate of Schock (Mont. 19871, P.2d I 44 

St.Rep. 1950, 1953. 

We initially note that the County was granted summary 

judgment prior to the State, yet testimony was still allowed 

as to County activity at the January 28, 1987 hearing. The 

District Court ruling releasing the County was based on the 

fact that the County could not be held liable for inverse 

condemnation as a matter of law where the State has exclusive 

jurisdiction over the state's highways. Although the 

District Court did not certify this summary judgment as final 

under Rule 54(b), M.R.Civ.P., Missoula County was never given 

notice by the Landowners in subsequent proceedings. We note 

the Landowners produced no authority in opposition to the 

County's motion for summary judgment and there was never any 

claim that the area was improperly zoned. 

The County cooperates with the State in highway 

projects but there is no legal authority or responsibility in 

regards to state highway projects that is vested in the 

County. The State has the ultimate authority and 

responsibility for any state highway pursuant to § 60-1-102, 

MCA . "State and federal-aid highways" are defined in 

§ 60-1-103(12) through (16) and (24) as any public highway 

planned, laid out, constructed, reconstructed, improved, 

repaired, maintained or abandoned by the department of 

highways. These include federal-aid secondary system 

highways of which Reserve Street was made a part over thirty 

years ago. 

We have held that where a city sufficiently proves that 

a road is part of the state highway system, the city cannot 

be held liable for claims of negligent design, defect, 

regulation, or maintenance. State ex rel. City of Helena v. 
District Court (1975), 167 Mont. 157, 536 P.2d 1182. We 

believe this same doctrine applies to counties and was 

satisfied by the County in this case. Therefore, we find 

that the District Court did not err in granting the County's 

motion for summary judgment. The District Court 

appropriately stated: 

[Tlhe Court is satisfied, as a matter of 

law, the State of Montana, acting through 

its State Highway Commission, has the 

exclusive authority to determine the 

location of state highways such as are 

involved here. Therefore, the County of 

Missoula cannot, as a matter of law, be 

held liable for the consequences of the 

location and construction as ultimately 

approved by the State Highway Commission. 

We also hold that the District Court did not err in 

granting the State's motion for summary judgment on the 

merits of this case due to the fact that the Landowners have 

at the most, suffered a noncompensable injury and Knight, 

supra, does not apply. 

The Montana Constitution, Art. 11, § 29 provides as 

follows: 

Private property shall not be taken or 

damaged for public use without just 

compensation to the full extent of the 

loss having been first made to or paid 

into court for the owner. In the event 

of litigation, just compensation shall 

include necessary expenses of litigation 

to be awarded by the court when the 

private property owner prevails. 

The Landowners rely upon this constitutional statement 

in bringing this action. The claim is not brought for 

nuisance, a tortious act which does not allow recovery of 

expenses of litigation. Additionally, the claim is not 

strictly by eminent domain because there was no actual 

"physical taking." The Landowners instead rely on the 
doctrine of inverse condemnation. Inverse condemnation is 

" [a] cause of action against a governmental defendant to 

recover the value of property which has been taken in fact by 

the governmental defendant, even though no formal exercise of 

the power of eminent domain has been attempted by the taking 

agency. " Thornburg v. Port of Portland (Or. 1962) , 376 P. 2d 

100, 101, citing State by and through State Highway Comm. v. 

Stumbo et al. (Or. 1960), 352 P.2d 478, 480. 

We have held that it is not a complete defense to an 

inverse condemnation action for the governmental defendant to 

claim that it was exercising its police power. Nor is it 

required that an actual physical "taking" occur. Knight, 

supra, 642 P.2d at 144. In Knight, we stated that inverse 

condemnation could occur without physical invasion of the 

property. 

Under constitutions which provide that 

property shall- not be "taken or damaged" 

[as the Montana Constitution so provides] 

it is universally held that "it is not 

necessary that there be any physical 

invasion of the individual's property for 

public use to entitle him to 

compensation." 

Knight, supra, 642 P.2d at 145, citing Less v. City of Butte 

(1903), 28 Mont. 27, 72 P. 140, 141. 

The Knight decision relied heavily on a test developed 

by the former chief judge of the Court of Appeals for the 

Tenth Circuit, Hon. Alfred Murrah, who wrote in a dissent: 

As I reason, the constitutional test in 

each case is first, whether the asserted 

interest is one which the law will 

protect; if so, whether the interference 

- is sufficientlv .d direct. sufficientlv 

peculiar, -- and of sufficient magnitude to 

cause - us - to conclude that fairness and 

iustice. as between the State -- and the 

citizen; requires the burden imposed - to 
- be borne the public - -- and not 2 the 

individual alone. (Emphasis added.) 

Batten v. United States (10th Cir. 1962), 306 F.2d 580, 587, 

cert. den., 371 U.S. 955, 83 S.Ct. 506, 9 L.Ed.2d 502. 

In this case, we are faced with a determination of 

whether the interference caused by increased traffic, which 

occurs when a bridge is opened, is of direct, peculiar and 

sufficient magnitude to allow for compensation. 

Generally, the testimony and exhibits offered by the 

Landowners at the subsequent hearing on the motion for 

reconsideration of the granting of summary judgment would not 

be allowed. Rule 52(b), M.R.Civ.P. outlines the procedure for 

amendment of the findings and it may be raised with a Rule 59 

P4.R.Civ.P. motion for new trial. However, any motion for a 

new trial "[slhall state with particularity the grounds 

therefor . . . " No new trial, allowing additional evidence, 

is generally to be granted in cases tried without a jury 

except for the explicit grounds enunciated in S 25-11-102, 

MCA, subsection (I), irregularity in the proceedings or abuse 

of discretion, (3), accident or surprise, or (4), newly 

discovered evidence. Section 25-11-103, MCA. 

The rules should be followed at all times by any 

practicing attorney. In this case, the Landowners' counsel 

failed to abide by the mandates and did not specifically set 

out grounds on which any hearing should have occurred. 

Considerable evidence was allowed subsequent to the District 

Court's order granting summary judgment. Nonetheless, we 

have stated that the rules encourage disposition of cases on 

their merits and therefore we will consider all evidence 

presented to the District Court. White v. Lobdell (Mont. 

1984), 678 P.2d 637, 642, 41 St.Rep. 346; Rambur v. Diehl 

Lumber Co. (1964), 144 Mont. 84, 394 P.2d 745, 749. 
Landowners strenuously argue the application of Knight 

in this case along with a citation from 2A Nichols - on Eminent 

Domain § 6.31[2], pp. 6-221-6-222, which states: 

Personal inconvenience or discomfort to 

the owner or interference with the 

business conducted on the land is not 

cornpensable unless such results are 

causative factors in the depreciation in 

value of the land. 

They claim that testimony of the "unique" character of 

Reserve Street was presented by the individual landowners and 

their expert, Barney Olson, an MA1 appraiser and owner of 

Olson Appraising and Consulting, thereby raising a question 

of fact. It was through this testimony that the Landowners 

argue they have satisfied the test of Knight that the 

interference is sufficiently peculiar for compensation. We 

disagree. 

The Knight opinion stated " [ulnder the unique facts of 

this case . . . " and "[wle caution that this holding is 

limited to the situation here . . . " The case itself 

involved a claim for inverse condemnation by landowners not 

only for increased traffic and resulting inconvenience caused 

by the widening of 24th Street West in Billings, but also for 

limited zoning placed on the neighborhood by the City of 

Billings. 

The area involved in Knight was zoned residential only. 

This was a significant factor because: 

[TI he interference with plaintiffs' 

properties has been direct; it is 

peculiar in the sense that the facts here 

are unique; and the interference is of 

sufficient constitutional magnitude since 

the proof in this case showed that there 

had been a 20 to 30 percent reduction in 

the value of the individual residential 

properties, and that the value of each 

"as is" is $10,000 to $15,000 less than 
their values if the area were zoned 

residential professional. Though no 

physical taking has occurred, the result 

of the City's actions has been to impose 

a servitude, a limitation upon the use 

and marketability of plaintiffs ' 

properties as residential. 

Knight, supra, 642 P.2d at 145. 

Additionally, there was a condemnation of property on 

the east side of 24th Street West and these landowners 

received compensation either in eminent domain proceedings or 

by agreement with the City of Billings. There has been no 

similar singling out of one group or individual in the case 

at bar. 

Missoula County zoned the area in question in a manner 

which allows not only residential, but commercial and 

professional office use under a permit program. The District 

Court took judicial notice of the findings of the Missoula 

District Court in Cause No. 57548, an action for an 

injunction brought by many of the same claimants in this 

action, in which it was stated: 

[Tlhe permit system contains specific 

standards which, when applied to 

multi-f amily residential and 

non-residential uses, reduce the impact 

of more intensive uses on adjacent 

residential uses. 

[Tlhe purposes . . . foster a mixture of 

uses along Reserve Street, including 

commercial uses, while protecting the 

residential property values of land 

adjacent to the district, to minimize 

traffic congestion and reduce traffic 

hazards, and to promote development which 

can withstand the noise generated from 

Reserve Street. 

Mike Kress, of the Missoula Office of Community 

Development, testified that although there were complaints 
about understanding the zoning permit procedures, no 

application for a zoning change to "commerical" had been 

denied. 

The Landowners rely on the conclusion of Olson in a 

report he submitted in regard to the Reserve Street Project 

that the Reserve Street corridor is unique. Olson noted that 

the traffic count along Reserve Street increased from 7,648 

daily vehicles in 1978, prior to the date when the bridge was 

opened, to 13,940 in 1979 and 13,700 in 1980. This increase 

directly correlated with decreases over the four other major 

bridge crossing routes connecting Missoula's south and north 

sides during this same period of time. 

Olson asserted the "hybrid" zoning allowing 

residential, commercial and business office use did not lend 

itself to any of these uses adequately. Therefore, he 

concluded, the properties did not increase in value with the 

normal expected market demand. The District Court, however, 

stated in its conclusions of law in granting the motion for 

summary judgment that "[tlhe present plaintiffs' property may 

be used for not only office use, but also limited 

commercial." Although this conclusion was made prior to 

either Kress' or Olson's testimony, it clearly shows the 

District Court determined that the zoning was not only 

appropriate but sufficient to maintain value in the 

Landowners' properties. 

Additionally, Olson's claim that the property was 

unique cannot be accepted by this Court. Any property that 

is adjacent to an improved roadway is going to suffer the 

adverse consequences of traffic increase. To allow recovery 

for the Landowners in this case would open a Pandora's Box 

which would, as the State, County and Amicus Curiae have 

argued, make development or improvement of highways and 

roadways in the State of Montana cost-prohibitive. 
The District Court appropriately stated: 

The benefits which come and go from the 

changing currents of travel are not 

matters in respect to which any 

individual has any vested right against 

the judgment of the public authorities. 

State v. Peterson, 134 Mont. 52, 68, 328 

P.2d 617 (1959) ; 4A Nichols on Eminent 

Domain, S 14.15[4], P. 14-340 (Rev. 3d 

Ed.). To say otherwise would allow any 

property owner or resident of land 

adjacent to a public roadway to file 

legal claims against the governmental 

agency responsible for the 

maintenace/construction of the roadway 

whenever vehicle traffic upon the roadway 

increased to a point where the 

resident/owner objected. This is not the 

status of the law in this area. 

We sympathize with the plight of the Landowners. 

However, the wheels of progress shall not be slowed. There 

is no doubt that increased traffic volume, traffic fumes, 

noise, dust and difficulty of ingress and egress caused 

inconvenience or discomfort to the property owners when the 

Reserve Street Bridge was opened. Nonetheless, we find these 

detriments to be noncompensable. The benefit that these 

Landowners will receive is that more traffic generally is a 

bonus to commercial property. No substantial evidence was 

ever presented showing that this property was - not valuable if 

used in a commercial fashion. 

Nichols on Eminent Domain, 

it is stated: 

Certain types of damage caused by the 

laying out of a highway have been 

rejected as compensable elements bearing 

upon the depreciation in value of the 

remainder area. Thus, where the injury 

complained of is not peculiar to the 

tract out of which the land taken was 

carved, but is, in fact, an injury common 

to all land in the neighborhood and to 
the public in general it may not be 

considered. Increased traffic . . . ha[s] been rejected on this account. 

Diversion of traffic, too, and the 

resulting loss of business, have been 

denied consideration. The fact that an 

owner's property would have been enhanced 

in value to a greater extent by the 

location of the highway at a different 

point does not give rise to an element of 

damage meriting legal recognition. 

Courts that have considered the claim advanced by the 

Landowners have rejected compensation on the grounds of 

damages caused by increased traffic. 

Accordingly, the considerable increase in 

noise levels at Dreher Park caused by 

passing traffic on 1-95 is no more than a 

"taking" than has been inflicted on 

countless tens of thousands of Florida 

residences (not to mention an abundance 

of parks and golf courses) whose 

occupants endure the consequences of 

endless traffic noise from adjacent 

arterial highways. . . The damage to 

Dreher Park is no different in kind from 

that suffered by anyone else similarly 

situated. . . Division of Administration v. West Palm Garden Club (Fla.App. 

Yet if no part of an adjoining property 

owner's land is taken, that neighbor will 

receive no compensation for the loss he 

may have suffered by virtue of his 

property now being close to a noisy 

expressway. 

Washington Market Ent., Inc. v. City of Trenton (N. J. 1975) , 

In this case the effect of the 

construction is not limited to the 

neighborhood, or even to plaintiff and 

her three neighbors, and certainly not to 

the plaintiff alone. All the owners of 
such property, like the plaintiff here, 

must suffer the noise of traffic and must 

view less pleasant surroundings. In the 

metropolitan areas through which 

Interstate 10 passes, literally hundreds 

of houses which once had ingress and 

egress by direct routing of streets are 

now situated below elevated multi-lane 

highways and are reached by circuitous or 

more inconvenient routes. These are not 

in themselves special damages; they have 

not been and are not recoverable. 

[Citations omitted.] Even when, as in 

the instant case, an actual diminution in 

market value of the property is found to 

exist because of these factors, this 

diminution is not compensable. Damages 

which cause discomfort, disturbance, 

inconvenience, and even sometimes 

financial loss as an ordinary and general 

consequence of public improvements are 

not compensable, and are considered 

damnum absque injuria. 

Reymond v. State Department of Highways (La. 1970), 231 So.2d 

375, 384. 

[Pllaintiff argues that the value of his 

property has been decreased by the flow 

of traffic on the newly constructed 

highway. It is clear, however, that not 

every conceivable kind of injury to the 

value of adjoining property resulting 

from highway construction is "damage" in 

the constitutional sense. [Citations 

omitted. I Thus, while a reduction in 

property values may result from the 

noise, light, vibration, or fumes 

produced by the proximity of increased 

vehicular traffic on a newly constructed 

highway, such consequential damage is not 

usually treated as "damage" in the 

constitutional sense. [Citations 

omitted.] 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. [Citations omitted.] The cost of 

compensating all owners of property 

adjacent or proximate to newly 

constructed highways affected by these 

side effects would be so prohibitive that 

it would effectively halt the 

construction of highways by the State. 

[Citations omitted.] 

Thomsen v. State (Minn. 1969), 170 N.W.2d 575, 579. 

[Tlhe court found that the remaining land 

of the defendants was further depreciated 

in the sum of $3,896 for greater traffic 

noises due to the fact that the travel 

portion of the improved highway is now 

closer to the residence of the defendants 

than was formerly the case. The court 

disallowed this item of damage upon the 

grounds and for the reason that such 

damage is not special, unique and 

peculiar to the property of the 

defendants. 

State Road Commission v. Williams (Utah 1969), 452 P.2d 881, 

[Dlefendants argue that their right to be 

free from the increase of noise, fumes 

and annoyances which the presence of the 

freeway will entail is a part of their 

abutting land owners' right of light, air 

and view . . . In City of Berkeley v. Von 

Adelung, supra (1963) 214 Cal. App. 2d 

791, 29 Cal.Rptr. 802, the city in 

rounding off the angle of a street corner 

took a portion of defendant's corner lot. 

"Defendant offered to prove that the 

effect of the project as a whole would be 

to approximate triple traffic past 

defendant's lot, with resultant increase 

in fumes and traffic noises." [Citation 

omitted. 1 The court held that any 

decrease in the value of defendant's 

remainder because of this was 

uncompensable: that it was an 

inconvenience "general to all property 

owners in the neighborhood and not 

special to defendant." 
People v. Presley (1966), 239 Cal.App.2d 309, 48 ~al.~ptr. 

672, 677. 

Assuming, without deciding that there was 

damage, it was incidental to the 

construction of the freeway. A 

constitutional provision such as Article 

11, $ 17 [virtually identical to 

Montana's Art. 11, § 291, does not 

contemplate damage incidental to the 

building of a highway where there is no 

physical invasion of a plaintiff' s 

property . . . Any other interpretation 

would require the State to anticipate any 

and all damages that might indirectly 

occur to property and the payment of 

money in court before a highway could be 

constructed. 

Rutledge v. State (Ariz. 1966), 412 P.2d 467, 471. 

It is established that when a public 

improvement is made on property adjoining 

that of one who claims to be damaged by 

such general factors as change of 

neighborhood, noise, dust, change of 

view, diminished access and other factors 

similar to the damages claimed in the 

instant case, there can be no recovery 

where there has been no actual taking or 

severance of the claimant's property . . . To thus enlarge the scope of the 

state's liability under article I, 

section 14, would impose a severe burden 

on the public treasury and, in effect, 

place "an embargo upon the creation of 

new and desirable roads." 

People v. Symons (Cal. 1960), 357 P.2d 451, 454, 455. 

Historically, Montana claimants have been faced with 

the problems of increased traffic on public thoroughfares. 

In Kipp v. Davis-Daley Copper Co. (1910), 41 Mont. 509, 110 

P. 237, citizens of Butte attempted to obtain an injunction 

to restrain the railroad company from building and operating 

a railway through the city of Butte. The District Court 

granted the injunction and this Court reversed. In that 
opinion, the policy in regard to development of public 

transportation was adequately supported: 

For a highway is created for the use of 

the public, not only in view of its 

necessities and requirements as they 

exist, but also in view of the constantly 

changing modes and conditions of travel 

and transportation, brought about by 

improved methods and required by the 

increase of population and the expansion 

in the volume of traffic due to the 

ever-increasing needs of society. Were 

this not so, any change in these respects 

would require a readjustment of rights as 

between the public and the abutting 

property owner, because the result of it 

would of necessity be held an imposition 

of a new burden upon the highway, and 

hence upon the property of the abutting 

owner. For these changing public uses 

the owner must be presumed to have 

received compensation when the highway 

was created. 

Kipp, supra, 110 P. at 240. 

The Landowners have not shown that their situation is 

any different from the quandary facing the citizens of Butte 

over 75 years ago. They have received benefit from the mere 

fact that although their property may have decreased in value 

as residential property, it has undoubtedly increased as 

comrnerical property. 

The respondents appropriately point to Bolinger v. City 

of Bozeman (1972), 158 Mont. 507, 493 P.2d 1062, 1066, in 

which the Court stated: 

Indeed, many of what are now urban 

highways were merely country roads when 

the public acquired its easement in them, 

and doubtless many highways that are now 

merely country roads will in time become 

urban streets. When such changes occur, 

will the abuttinq owners be entitled to 

new compensation . . . Where land is 

conveyed for a ~ublic hiahwav the 
implication must ------- be that it will be used 

as the convenience and welfare of the 

public may demand, aEhough that demX 

may be augmented the increase of 

population. The benefitswhich an owner 

of the servient estate receives from the 

increase in population and consequent 

building up of the community usually far 

more than comwensate him for the 

increased burdenA he may claim to have 

suffered. 

Where land is dedicated or appropriated 

for a suburban road, the implication must 

be that it shall be used as the 

convenience and welfare of the public may 

demand, although that demand may be 

augmented by the increase in population, 

or by a town or city springing up in the 

territory traversed by the road. 

(Emphasis in original.) 

The Landowners have not shown that their situation is 

any different from any other property owner who suffers the 

affects of living adjacent to a roadway with increased 

traffic. 

We find it unnecessary to determine which statute of 

limitation applies to inverse condemnation cases as this 

opinion sets out the noncompensability of the Landowners' 

claim. Both the Landowners, who claim that a constitutional 

right violation has no statute of limitations, and the State, 

which argues the Landowners are limited to the two-year 

statute of limitation for damage, waste or trespass to real 

property pursuant to § 27-2-207, MCA, present interesting and 

feasible arguments. We find that the District Court did not 

err in granting summary judgment. 

We affirm. 
We concur: A 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

This appeal is really from the orders of the District 

Court dated October 28, 1986 and January 13, 1987, granting 

respectively summary judgments to the county and the state. 

At least it may be said for the order of October 28, 

1986 in favor of the county that is a decision based upon law 

as the District Court perceived it. However, the summary 

judgment in favor of the county was improper, because genuine 

issues of material fact exist as to whether the county, by 

its lack of enforcement of its truck routes, and its zoning 

policies, has jointly damaged the property owners here. 

The summary judgment in favor of the state is peculiar. 

It is founded on findings -- of fact and conclusions of law by 

the District Court, adopted verbatim from a submission by 

counsel for the state. In its findings, the District Court 

resolved issues of fact in favor of the state, a most 

improper procedure when deciding a motion for summary 

judgment. By the very act of deciding factual issues, the 

District Court shows that there were genuine issues of 

material fact, which would preclude summary judgment without 

a trial. The District Court concluded its order of January 

13, 1987, saying: 

From the foregoing Findings of Fact and Conclusions 

of Law, IT IS HEREBY ORDERED, ADJUDGED AND DECREED 

that defendants' June 30, 1986 Motion for Summary 

Judgment is properly made and submitted; is 

supported the evidence submitted -- to the court, 

and is hereby granted to these defendants and 

against the plaintiffs to this action. 

I would reverse the summary judgments and remand for 

trial. 

Justice