Riddock v. City of Helena

NO. 84-56
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984

WALTER S. RIDDOCK,
Plaintiff and Appellant,
-vs-

THE CITY OF HELENA,
Defendant and Respondent.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Gordon Bennett, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Dowling Law Firm; Thomas Dowling, Helena, Montana

For Respondent :
Jeffrey M. Sherlock, Helena, Montana

Submitted on Briefs: April 19, 1984
Decided: September 27, 1984
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
F7alter R. Riddock filed a complaint in Lewis and Clark
County District Court alleging that the City of Helena had
constructed a pipeline across the land of his predecessors in
interest without permission or payment of compensation.
Riddock, as present owner of the land, seeks compensation for
the alleged taking and recovery of the value of the City's
use since installation of the pipeline, or, in the
alternative, an order requiring the City to remove the
pipeline. The District Court granted summary judgment in the
City's favor and Riddock appeals. We affirm.
The issues are:
1. May plaintiff maintain an action for inverse
condemnation, trespass and injunctive relief against the City
for construction of a water pipeline in 1959 across lands
then owned by the plaintiff's predecessor in interest?
2. Did the City obtain an easement by prescription for
its water pipeline across plaintiff's land?
In 1959 the City of Helena constructed its Missouri
River water supply line from a regulating reservoir in the
Helena valley to the Missouri River Treatment Plant, also
located in the Helena valley. Prior to construction of the
pipeline, the City obtained easements from many property
owners. However, for reasons undisclosed by the record, the
City constructed the line outside the granted easements on
several parcels of land, including that now owned by Riddock.
Since 1959 the City has operated the water supply line under
the land of Riddock and his predecessor and without the
permission of either.
When the water supply line was installed in 1959, the
City's construction crews staked out the actual location of
the pipeline. The pipeline was constructed along the staked
route during daylight hours. The O'Connell Ranch Compa.ny was
the owner of the land at that time, but is not a party to
this action. Riddock became the owner of the land in May,
1978.
Riddock contends that when he purchased the property in
May, 1978 he was unaware that the pipeline crossed the land.
He states that at the time of the purchase he secured a title
insurance policy which did not reveal any encumbrances or
easements over the property in favor of the City. Riddock is
a land. developer and speculator who purchased the land
intending to hold it for subdivision and resale.
Riddock filed this action on February 5, 1983 after
negotiations with the City ended unsuccessfully. The
complaint is in three counts. The first count is for inverse
condemnation; the second is for dollar rental value for the
City's use of the land over the years; and the third is an
alternative request for injunctive relief requiring the City
to remove the pipeline at its own expense and restore the
land to its original condition.
After filing of interrogatories and responses by both
parties, Riddock and the City each moved for summary
judgment. On October 18, 1983 the District Court granted the
City's motion for summary judgment. In its findings,
conclusions and order, the court found that the only person
entitled to recover for inverse condemnation is the owner of
the land at the time of the taking, which in this case would
have been at the time of construction. Because Riddock was
not the owner of the land at the time of the taking, the
court concluded that he is not entitled to maintain an action
in inverse condemnation against the City. The court further
concluded tha.t the City had occupied the land in as open,
conspicuous and notorious a manner as possible, considering
the nature of the use, and had satisfied the other elements
necessary to obtain an easement by prescription. The court
concluded that the City had obtained an easement by
prescription across Riddock's land. The court entered
judgment against Riddock and in the City's favor. Riddock
appeals.

May plaintiff Riddock maintain an action for inverse
condemnation, trespass and injunctive relief against the City
for construction of a water pipeline in 1959 across lands
then owned by the plaintiff's predecessor in interest?
Riddock does not seriously contend that he is entitled
to maintain an inverse condemnation action against the City.
However, he contends that the City has not obtained a
prescriptive easement and that he may therefore obtain an
injunction against further use of his land by the City. He
contends that there are remaining questions of fact on this
issue.
It is undisputed that Riddock was not the owner of the
property when the pipeline was constructed in 1959. The
owner at that time was the O'Connell Ranch Company, which is
not a party to this action. The only person entitled to
recover damages for condemnation is the owner of the land at
the time of the taking. 3 Nichols On Eminent Domain § 8.5,
at 8-97 (3d ed. 1981); Smith v. Northern Pacific Railway Co.
(1919), 57 Mont. 14, 24, 186 P. 684, 686. The time of taking
in the installation of an underground pipeline is when
construction begins. Wickwire v. City & Borough of Juneau
(Alaska 1976), 557 P . 2 d 783, 784.
The rationale supporting the rule that only the owner at
the time of the taking may maintain the action is that the
right to compensation for a taking is a personal right which
does not pass to a successor with the transfer of land,
absent some form of assignment of the right itself. Smith,
57 Mont. at 24-26, 186 P. at 687. Riddock does not contend
that there was an assignment by OIConnell Ranch Company of
any right to damages for inverse condemnation against the
City of Helena. The District Court properly concluded that
Kiddock was not entitled to bring an action against the City
for inverse condemnation.
While Riddock does not seriously question this
conclusion, he does maintain that he has a right to
injunctive relief. We emphasize the correctness of the
District Court's conclusion on'the inverse condemnation issue
because it provides the basis for resolving Riddock's claim
for injunctive relief and, as prayed for in the complaint,
damages for trespass or recovery of rental value.
The landowner's only remedy for the City's construction
of a pipeline on his land without obtaining an easement is an
inverse condemnation action for just compensation for the
value of the easement on the date of taking. Wickwire, 557
P.2d at 784. In Wickwire, the court held that the plaintiff
landowner could not maintain an action for trespass because
the trespass necessarily results from the imposition of the
easement and the claim for damages for the trespass is
properly considered an element of the property owner's damage
due to the condemnation. 557 P.2d at 784.
In Brazil v. City of Auburn (Wash. 1980), 610 P.2d 909,
the court held that a landowner whose land had been taken for
a public roadway could not maintain an action for lost rent
and injunctive relief, but that the only right of recovery
was an action for inverse condemnation. 610 P.2d at 911-16.
This rule allows the public entity to compensate the damaged
landowner and keep the property interest taken. To allow the
landowner injunctive relief would allow the landowner to
defeat the City's power of eminent domain. This Court has
previously applied the rule of Wickwire and Brazil. Smith,
57 Mont. at 26, 186 P. at 687.
Because the only remedy ava.ilable to a landowner under
these circumstances is an action for inverse condemnation,
and because only the landowner at the time of the taking is
entitled to recover damages for the taking, Riddock has no
claim against the City of Helena. Indeed, the City's
construction of the water supply line did not harm Riddock;
it harmed his predecessor, the OIConnell Ranch Company. The
Ranch Company elected not to pursue its remedy against the
City and when Riddock purchased the property, it was already
burdened by the City's pipeline.
We hold that plaintiff Riddock may not maintain an
action for inverse condemnation, trespass or injunctive
relief against the City for construction of a water pipeline
in 1959 across lands then owned by the plaintiff's
predecessor in interest. Accordingly, any potential fact
issues related to such actions are immaterial.

Did the City obtain an easement by prescription for its
water pipeline across plaintiff's land?
To establish a prescriptive easement, the owner of the
purported dominant tenement must establish open, notorious,
exclusive, adverse, continuous and unmolested use of the
servient tenement for the full statutory period of 5 years
required to acquire title by adverse possession. Garrett v.
Jackson (1979), 183 Mont. 505, 508, 600 P.2d 1177, 1179.
Further, prescriptive title once established is not divested
by transfer of the servient estate. Garrett, 183 Mont. at
509, 600 P.2d at 1180; O'Connor v. Brodie (1969), 153 Mont.

Riddock contends that the City's use of the land for the
pipeline was not adverse or under claim of right because the
City recognized the landowner's rights when it acquired an
easement for the pipeline from the O'Connell Ranch Company.
-9
We disagree. The easement obtained by the City recognized
the lendowner's rights to the land covered by the easement.
However, the landowner's grant of an easement over a specific
tra.ct of land cannot be construed as creating a permissive
right to use an entirely different strip of land.
Riddock c0ntend.s that because the underground pipeline
was not visible to him when he purchased the property nor
visible throughout the prescriptive period, that the use was
not open and notorious and the City did not obtain a
prescriptive easement.
A similar argument was addressed by this Court in
0 ' Connor :

" . . . defendants [landowners] argue that an
underground water line does not have the element of
open and visible use; that being underground there
is no interference or conflict in use of the
surface land. In brief, defendants contend there
is no adverse occupancy such as exists where an
easement is claimed for a roadway.
"In answer - -
to this contention we might - - -
ask in what
further adverse manner could-plaintiffs occupy
defendants' - -with an underground water line?
land -
As this Court said in State v. Portmann [ (1967),
149 Mont. 91, 95, 4 2 3 P.2d 56, 5 8 1 : 'It is
difficult to imagine in what manner land might be
"occupied" with respect to an easement unless it be
by actual use.'" O'Connor, 153 Mont. at 138, 454
P.2d at 925 (emphasis added) .
The City openly and visibly constructed the water supply line
across the Ranch Company's land outside the easement granted
to the City. The intended location of the pipeline was
staked out for all to see. The District Court specifically
found that there was nothing more the City could have done
under the circumstances to put the landowner on notice of its
use. Certainly these circumstances were sufficient to put
the landowner on inquiry. As in O'Conner, we find the City's
use was sufficiently open and notorious to support the
District Court's finding of a prescriptive easement.
Riddock argues, as did the defendants in O'Conner, that
adverse occupancy did not exist because the circumstances of
adverse use were insufficient to put a prudent man upon
inquiry. Riddock contends that he is a pru.dent man, that he
had a title search done which failed to show the existence of
the pipeline, that his title insurance policy did not show
any easement in favor of the City, and that visual inspection
of the property did not indicate the presence of the
pipeline.
Riddock errs, however, in applying the prudent man test
to himself rather than to his predecessor, against whom the
City's prescriptive easement was obviously perfected. This
Court's response to the prudent man argument in O'Connor is
applicable here:
"But whether the [landowner] had actual knowledge
of the underground water line is immaterial for the
reason that plaintiffs had acquired prescriptive
title prior to the time [landowners] acquired their
property. Prescriptive title once established is
not divested by the subsequent transfer of the
servient estate. The [landowners'] lack of
knowledge, if any, of the underground water line is
a matter which must be settled between the
[landowners] and their grantor." 153 Mont. at 139,
454 P.2d at 926.
Here the City's prescriptive easement ripened before Riddock
acquired title to the land crossed by the City's pipeline.
Riddock's lack of knowledge of the pipeline is immaterial to
this action. The record contains substantial uncontradicted
evidence satisfying the elements necessary to obtain an
easement by prescription. We find no error in the District
Court's conclusion that the City of Helena obtained an
easement by prescription for its water pipeline across

plaintiff's land.

The judgment the District Court is affirmed.

We concur:

94A62. &*
Chief Justice