No. 87-148

INTHE SUPREME COURTOF THE STATEOF MONTANA

1988

IVANand GERALDINEADAMS

## ,et a1

# ., PlaintiffsandAppellants,-vsTHEDEPARTMENTOF HIGHWAYSOF THE STATE OFMONTANA, and MISSOULA COUNTY,
Defendantsand Respondents.

APPEAL FROM: District Court of the FourthJudicialDistrict, Inand for the County ofMissoula, The HonorableR. D. McPhillips,Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Milodragovich, Dale & Dye; Lon Dale argued, Missoula, Montana

For Respondent:

SteveGarrison argued,Dept of Highways, Helena, Montana Robert Deschamps, 111,CountyAttorney;JoanNewman argued,Deputy,Missoula,Montana

ForAmicus Curiae:
JimNugent, CityAttorney, League ofCities & Towns, Missoula,Montana

Submitted: December 8, 1987
Decided: February 18, 1988Mr. 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/respondentsMissoula County (County)and the State of Montana (State) on an inverse condemnation claim brought by landownerswho 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 statehighway? 2. Did the District Court err in granting summary judgment on the merits because Landowners suffered no compensable injuryunderMontana 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 condemnationand laches? This suit arose out of the constructionof 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, therewas immediatetraffic increase, including heavy trucks, and an increase of noise, air pollution, and dust accumulation. Some of the Landowners claim respiratory

### problems due to this increasealongwith adverse consequences of pollution, excessive noise, dust, and inability to conveniently ingressand egress. Thegravamen of their claim isbased onproperty devaluation. Reserve Street was originally designated as a federal-aid secondary highway system and is a statehighway. 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 thepublic forever" prior topurchaseby any of the landowners. No right-of-wayhad to be acquired by the State and therefore no eminent domain proceedings everwere 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 developmentupon application for,and receipt of,apermit for specificuse. This suit is based on inverse condemnation alleged to have been caused by the increased traffic. The complaintwas 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 complaintwas filed

over fouryears and sevenmonths after thebridgewas 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 condemnationunderMontana law,applied.The Stateand County filedmotions 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,despitehaving 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, Landownerspresented 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 DistrictCourt 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 clearby 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 judgmentas a matter of law. Sevalstadv. 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 testimonywas still allowed

as to County activity at the January 28, 1987hearing. The District Court ruling releasing the County was based on the fact that the County could not be held liable for inverse condemnationas amatter of lawwhere the State has exclusive jurisdiction over the state's highways. Although the DistrictCourtdid not certify this summary judgmentas final under Rule 54(b), M.R.Civ.P., Missoula Countywas never given notice by the Landowners in subsequentproceedings. We note the Landowners produced no authority in opposition to the County's motion for summary judgment and therewas never any claim that the areawas improperly zoned. The County cooperates with the State in highway projectsbut there is no legalauthority 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 Streetwas made a part over thirty years ago. We haveheld that where a city sufficientlyproves 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: [TlheCourt is satisfied, as amatter of law, the StateofMontana, 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 approvedby the StateHighway 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 ownerprevails.
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 thevalue ofproperty which has been taken in factby the governmentaldefendant,even thoughno formalexerciseof 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 Stateby and through State Highway Comm. v. Stumbo et al. (Or. 1960), 352P.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 "takenor damaged"

[astheMontana Constitution soprovides] 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, 642P.2d at 145,citing Less v. City of Butte

(1903), 28Mont. 27, 72P. 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 direct. sufficientlv 

### - .d 

### peculiar, 

### -- and of sufficientmagnitude to cause us to conclude that fairness and 

### - - 

### iustice. as between the State and the 

### -- citizen; requires the burden imposed 

### - tobe borne the public and not 

## 2 the 

### - - -- individual alone. (Emphasis added.)

Batten v. United States (10thCir. 1962), 306 F.2d 580, 587, cert. den., 371U.S. 955,83 S.Ct. 506, 9L.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 reconsiderationof the granting of summary judgment would not be allowed. Rule 52(b), M.R.Civ.P. outlines theprocedure for amendment of the findingsand itmay be raisedwith 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 evidencewas 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), 144Mont. 84, 394 P.2d 745, 749.

### Landowners strenuously argue the application of Knight in this case alongwith a citation from 2ANichols

## - onEminent 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 Streetwaspresented by the individual landownersand their expert, Barney Olson, an MA1 

### appraiser and owner of Olson Appraising and Consulting, thereby raising a question of fact. Itwas 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 

### "[ulnderthe 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 inconveniencecaused by the widening of 24th Street West inBillings, but also for limited zoning placed on the neighborhood 

### by the City of Billings. The area involved inKnightwas zoned residentialonly. Thiswas a significant factorbecause: [TIhe interference with plaintiffs' properties has been direct; it is peculiar in the sense that the factshere are unique; and the interference is of sufficient constitutional magnitude since the proof in this case showed that there had been a 20 to 30percent reduction in the value of the individual residential properties, and that the value of each "as is" is $10,000 to $15,000 less thantheir 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, 642P.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 domainproceedings or by agreement with the City of Billings. There has been no similar singling out of one group or individual in the case atbar. Missoula County zoned the area in question in a manner which allows not only residential, but commercial and professionaloffice use under apermitprogram. 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, inwhich itwas 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 residentialuses.

[Tlhepurposes

# . . . 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 topromote 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 isunique. Olson noted that the traffic count along Reserve Street increased from 7,648 daily vehicles in 1978,prior to the datewhen the bridgewas 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 connectingMissoula's south and north sidesduring this sameperiod 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 "[tlhepresent 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 StateofMontana 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 trafficupon the roadway increased to a point where the resident/ownerobjected. 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 Bridgewas 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 propertywas 

### - notvaluable if used in a commercial fashion. Nichols onEminentDomain, 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 havebeen enhanced in value to a greater extent by the location of the highway at a different point does notgive 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 causedby increased traffic. Accordingly, the considerable increase in noise levels at Dreher Park caused by passing traffic on 1-95 

### isnomore 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.

# .

# . DivisionofAdministration

### v. West Palm Garden Club (Fla.App.

Yet if no part of an adjoining property owner's land is taken, thatneighborwill 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 sufferthe noise of traffic andmust 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 reachedby circuitousor 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 instantcase,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. Reymondv. StateDepartment of Highways (La. 1970), 231

### So.2d 375,384. 

### [Pllaintiffargues 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 isnot 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 incidentto theprosecution of necessary public enterprises"and as such must be and are borne by the public atlarge. [Citationsomitted.] The cost of compensating all owners of property adjacent or proximate to newly constructed highways affected by these side effects would be soprohibitive that it would effectively halt the construction of highways by the State.

[Citationsomitted.]
Thomsenv. State (Minn. 1969), 170N.W.2d 575,579. [Tlhecourt found that the remaining land of the defendantswas 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 residenceof 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,

[Dlefendantsargue that their right tobe 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' rightof light,air and view

# . .

# . InCity ofBerkeley v. Von Adelung, supra (1963) 214 Cal. App. 2d 791, 29 Cal.Rptr. 802, the city in roundingoff the angle of a street corner took aportion ofdefendant's corner lot. "Defendant offered to prove that the effect of theproject as awholewould 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 therewas 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 anticipateany and all damages that might indirectly occur to property and the payment of money in court before a highway could be constructed. Rutledgev. State (Ariz. 1966), 412 P.2d 467, 471. It is established that when a public improvement ismade onproperty 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 desirableroads." Peoplev. 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 thatopinion, the policy in regard to development of public transportationwas 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 inview 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 readjustmentof 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 theirproperty may have decreased in value



### as residential property, it has undoubtedly increased as comrnericalproperty. The respondentsappropriatelypoint to Bolingerv. 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 doubtlessmany 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

### implicationmust be that it will be used 

### ------- as the convenience and welfare of the publicmay demand, aEhough thatdemX 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 burdenAhe may claim to have suffered.
Where land is dedicated or appropriated for a suburbanroad,the implication must be that it shall be used as the convenienceandwelfare of thepublic may demand, although that demand may be augmented by the increase in population, or by a town or city springingup in the territory traversed by the road.

(Emphasisin 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 rightviolationhas no statuteof 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 DistrictCourt did not

err in granting summary judgment. We affirm.We concur: 

### A

JusticesMr. Justice JohnC. 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 favorof the county that is a decisionbased upon law

as the District Court perceived it. However, the summary judgment in favor of the countywas 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 theproperty 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 theplaintiffs to this action.

I would reverse the summary judgments and remand for trial.

Justice