Knight v. City of Missoula

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
t h a t 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 e n j 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 p u b l i c park and t h e r e was a f a i l u r e t o
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 c r e a t i o n of the road even a s 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
~akimaresidents 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
and the resultant increase in "noise dust and fumes, etc."
traffictt
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 A a , 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 ~ i g h w a y sv. 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 residents1proposed 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 fvgovernmentalentityv' means. . .
municipalities, and any other local government entity or
local political subdivision vested with legislative power
by statute;
...
(c)(i) the term tTlegislativeacttvmeans:
(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 g
LJ 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 S T A T E OF MONTANA
No. 91-307

LORRAINE K N I G H T , et al.,
Plaintiffs and Appellants,
1
-v- 1 O R D E R

THE CITY O F MISSOULA and
THE COUNTY OF MISSOULA,
Defendants and Respondents.
i
' *.$ &k
8
r, .3 &-. ,ti ET
m
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 t h i s 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 t h e portion of Knight's claim arising from
the existence. t h e use. and the CitvTs refusal to close
............ .
>. :
t h e road. The District Court xuZedZ.on t h e basis of facts
presented ,
takings and the
resultant increase i n llnoise dust and f
L;&w ,barrede by the statute of the problems
not
T h e r is evidence that
limitations
. . . .
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