No. 80-488 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IVAN HOWARD, 

Plaintiff and Respondent, 

STATE OF MONTANA, 

Department of Military Affairs, 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Broadwater 

Honorable Peter Meloy, Judge presiding. 

Counsel of Record: 

For Appellant: 

Denny Moreen argued and Daniel J. Hoven argued, Assistant 

Attorneys General, Helena, Montana 

For Respondent : 

Patrick F. Hooks and Tom Budewitz argued, Townsend, 

Montana 

Filed: JUN 2 4 1982 

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 State in the First Judicial 

District, Broadwater County, the trial court granted 

Howard's motion for a new trial. The State appeals. 

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 the property three times and ordered a title 

commitment from Surety Title Company 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 title commitment 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 or 
other citizens. 

The Toina-Howard contract was consurnmated on March 27, 

1978. Howard planned to subdivide the 183 acres into recreational homesite areas and sell it for $500 an acre. In 

early May, Howard put a general ad for recreational land in 

the Independent Record 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 first became 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 

inverse condemnation. 

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 the property." 

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 definition of "taking ," which the court refused, 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 is not crucial to this case. 

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, the damages awarded, if any, would 
be determined by .the 1978 property value. Further, the 

State's affirmative defenses of prescriptive easement, 

laches, and statute of limitations would 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, interfered with the right to use the 

property. Consequently, the damage, if any, would be 

determined by the 1958 property values and the State's 

affirmative defenses 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 Constitution provides 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 

"[plrivate property shall not be taken or damaged for public 

use without just compensation. . ." (Emphasis added.) Art. 

11, Sec. 29, 1972 Mont. Const.; cf. Rauser v. Toston Irrigation District (1977), 172 Mont. 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 ignores the trespass requirement. 

Thornburg also involved a changing interference with 

property rights. The original propeller planes were not 

nearly as noisy as the jets that motivated 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 

it was used occasionally for hunting 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. State Highway Commission (1976), 274 

Or. 49, 545 P.2d 105, 108. 

Atwater parallels the instant case. The mining 

clairils, although used only for grazing until 1978, were 

first "taken" (if ever taken) for military use 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, statutes of limitations and laches. 

The case is controlled by the fact that Howard 

purchased this land af ter inverse condemnation occurred. He 

was, therefore, precluded from claiming damages for inverse 

condemnation. Knight v. City of 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 its discretion in granting a new trial. 
The order of the District Court granting a new trial 

is reversed and the jury verdict reinstated. 

We concur: 

,.' 

\-- 7, 

justices I