### No. 80-488 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1982

IVAN HOWARD, Plaintiff and Respondent,

STATEOF MONTANA, Departmentof MilitaryAffairs, DefendantandAppellant.

Appeal from: District Courtof theFirstJudicialDistrict, Inand for the County of Broadwater Honorable PeterMeloy, Judgepresiding. CounselofRecord: ForAppellant: DennyMoreen argued andDanielJ. Hoven argued, Assistant

Attorneys General, Helena,Montana ForRespondent: 

### PatrickF. Hooks and TomBudewitz argued,Townsend,

Montana

Filed: 

## JUN

## 2

# 41982 Submitted: March 2, 1982 Decided: 

### 3q

### Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal results from an action by a developer, Ivan Howard, against the State Department of Military Affairs (hereinafter the State) for inverse condemnation. Following a jury verdict for the Statein the FirstJudicial District, Broadwater County, the trial court granted Howard's motion for a new trial. The Stateappeals. This dispute involves 183 acres in the Limestone Hills 

### area southwest of Townsend, Montana. The land was owned by sheep ranchers, the Toma family, from the 1920s until 1978. In 1978 Robert Bateman and Ivan Howard purchased the land, made up of eleven patented mining claims, for $20B an acre. Before completing the sale, Howard and Bateman visited theproperty three times and ordered a title commitment from SuretyTitleCompany of Helena. From 1958 until 1971, the National Guard conducted two- to four-week annual training sessions in the Limestone Hills

### area, which involved the use of artillery shells and other weapons. From 1971 to the present, the same land has been used for weekend training froin spring until fall of each year. Throughout this time, the National Guard has operated with a special use permit from the Bureau of Land Management and the State of Montana, which own the land surrounding the mining claims. The current permit will 

### expire in 1983. Bateman and Howard were unaware of the National Guard's presence. Neither the Tornas nor the titlecommitment mentioned the problem. The National Guard's presence
was common knowledge in the Townsend area, but Howard and Bateman did not discuss the sale with local realtors orother citizens. The Toina-Howard contractwas consurnmated on March 27, 1978. Howard planned to subdivide the 183acres into recreational homesite areas and 

### sell it for $500 an acre. In early May, Howard put a general ad for recreational land in the IndependentRecord and received nineteen responses. On May 6, Howard planned to 

### meet prospective buyers at the "homesites" but was stopped by roadblocks erected by the National Guard. This was when Howard firstbecame aware of the National Guard's presence. Subsequently, Howard sold

one lot for $58B an acre to a buyer who liked to watch howitzers. iioward abandoned any further attempts to sell the property, however, and filed suit against the State for inversecondemnation. The jury found in favor of the State. Howard filed a motion for a new trial, which was granted. The State appeals. The first issue raised on appeal is whether the District Court erred in defining "taking" as "actual interference with use of theproperty." Jury Instruction No. 13, proposed by Howard and adopted by the trial court, defines "taking" as "actual interference with the use of the property." The State's proposed definitionof "taking

## ,"which thecourtrefused, is "actual interference 

### with or disturbance of property rights." In view of our holding herein that Howard purchased the land after its inverse condemnation, the distinction isnot crucial to thiscase. Using Howard's theory of inverse condemnation, the "interference witk~use" occurred in 1978, as the military

manuevers did not interfere with the land until it was developed in 1978. Thus, thedamages awarded, if any, wouldbe determined by .the 1978 property value. Further, the State's affirmative defenses of prescriptive easement, laches, and statuteof limitationswould be inapplicable. In contrast, under the State's theory, a "taking" would occur whenever there was actual interference with property rights. Thus, the "taking," if any, occurred when the military manuevers began in 1958. The manuevers, even if the land was unused, interferedwith the right touse the property. Consequently, the damage, if any, would be determined by the 1958 property values and the State's affirmativedefenses could be given. We hold for the State. Howard relies on Thornburg v. Port of Portland (1962), 233 Or. 178, 376 P.2d 100, to support his "use" theory. Thornburg was a landowner near the Portland airport who sued for extreme noise. But, Thornburg is easily distinguished. The Oregon Constitutionprovides that

### "[p]rivate property shall not be taken for public use 

# .

# .. without just compensation. 

# . . I' Art. I, Sec. 18, Oregon Constitution. The Montana Constitution, in contrast, provides that "[plrivateproperty shallnotbe taken ordamaged forpublic



### usewithoutjust compensation. 

# .

# ." (Emphasis added.) Art. 11, Sec. 29, 1972Mont. Const.; cf. Rauser v. Toston IrrigationDistrict (1977), 172Mont. 538, 565 P.2d 632. The more restrictive Oregon Constitution required the court to adopt

a nuisance theory in order to compensate Thornburg. To do this, the Oregon court discusses actual interference with the use of property and ignoresthe trespass requirement. Thornburg also involved a changing interference with property rights. The original propeller planes 

### were not nearly asnoisy asthe

### jets thatmotivated Thornburg's suit.The instant case is similar to Atwater v. United States (1946), 106 Ct. C1. 196, where tile plaintiff's land

kids used from 1941-1944 as a safety zone for an adjoining gunnery range. Plaintiff had never used, occupied or rented the land and received no income from the property althougli itwas used occasionally forhunting ducks. The court found that the use of the land as the safety zone, which was patrolled, constituted a taking. The "taking" was the interference with the right to use the property, not the actual use. See also: State ex rel. Symms v. Nelson Sand and Gravel, Inc. (1970), 93 Ida. 574, 468 P.2d 306, 311; Lincoln Loan Company v. StateHighway 

### Commission (1976),274 Or. 49, 545P.2d 105, 108. Atwater parallels the instant case. The mining clairils, although used only for grazing until 1978, 

### were first"taken" (if ever taken) formilitaryuse in 1958, when the National Guard first interfered with the owner's right to use the land. It follows that if the "taking" occurred in 1958, the trial court should have given instructions on prescriptive easements, statutesof limitationsand laches. The case is controlled by the fact that Howard purchased thisland af

### ter inverse condemnation occurred. He was, therefore, precluded from claiming damages for inverse condemnation. Knight v. Cityof Billings (1982), Mont.



## , 642 P.2d 141, 39 St.Rep. 385; Williams v. City of Valdez (Alaska 1981), 624 P.2d 802. It is, therefore, unnecessary for us to consider the issue of whether the court abused itsdiscretion ingranting a new trial.The order of the DistrictCourt granting a 

### new trial is reversed and thejury verdict reinstated.

We concur:

,.' \-- 7, justices 

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