Adams v. Dept. of Highways of Mont.

No. 87-148
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

IVAN and GERALDINE ADAMS , et a1 .,
Plaintiffs and Appellants,
-vs-
THE 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
- sufficientlv direct. sufficientlv
is .
d

peculiar, - - sufficient magnitude to
and of
cause - - conclude that fairness and
us to
iustice. as between the State - -and the
citizen; requires the burden imposed -to
 - borne
be - public - - 2 the
the and not
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 - Eminent
on
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:
[TIhe 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 - valuable if
not
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 - 9 5 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. 1 9 7 5 ) ,

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 1 0 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), 2 3 1 So.2d
375, 3 8 4 .
[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 ~ a l . ~ p t r .
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 ~ u b l i c hiahwav the
 implication must be that it will be used
-------
as the convenience and welfare of the
public may demand, aEhough that d e m X
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 DECREED
AND
that defendants' June 30, 1986 Motion for Summary
Judgment is properly made and submitted; is
supported the evidence submitted - - court,
to the
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