                                                                                                 02/28/2017


                                           DA 15-0683
                                                                                             Case Number: DA 15-0683

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2017 MT 37



JANE DESCHNER and JON LODGE,

              Plaintiffs and Appellants,

         v.

STATE OF MONTANA, DEPARTMENT
OF HIGHWAYS,

              Defendant and Appellee.



APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DV 10-1800
                       Honorable Michael G. Moses, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Kenneth D. Tolliver, Joshua P. Oie, Tolliver Law Firm, P.C., Billings,
                       Montana

                For Appellee:

                       Calvin J. Stacey, Bryan M. Kautz, Stacey, Funyak & Kautz, Billings,
                       Montana




                                                    Submitted on Briefs: December 7, 2016

                                                                Decided: February 28, 2017


Filed:



                       __________________________________________
                                         Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1    Jane Deschner and Jon Lodge (Deschner and Lodge), appeal the October 6, 2016

judgment by the Thirteenth Judicial District Court, Yellowstone County. Deschner and

Lodge challenge the District Court’s jury instruction on inverse condemnation. We

address the following issue:

      Whether the District Court’s jury instruction on inverse condemnation was
      erroneous.

¶2    We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3    This case concerns a rockfall that damaged Deschner and Lodge’s residence at

1313 Granite Avenue, Billings, Montana, near the Billings Rimrocks (Rims). Originally

constructed in the 1970s, Deschner and Lodge bought the house in 1996. On October 9,

2010, a sandstone slab fell from the Rims that weighed roughly two million pounds and

measured approximately sixty feet long, thirty feet wide, and eight feet deep. The fallen

slab displaced the home and rendered it uninhabitable.

¶4    The City of Billings owns the property from which the slab fell. The State of

Montana constructed and maintains Montana State Highway 3, known locally as Airport

Road, that runs on top of the Rims north of Deschner and Lodge’s property. Originally

constructed in 1936 over a commonly used route, the State improved Highway 3 in 1963,

rerouting it roughly 170 feet south and installing culverts underneath the new roadway to

facilitate water runoff. Deschner and Lodge sued the City of Billings, the State of

Montana, and various insurance entities. On the inverse condemnation claim, the District


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Court granted summary judgment to the City but denied summary judgement to the State.

The only remaining defendant in this appeal is the State of Montana, Department of

Highways.

¶5     At trial, Deschner and Lodge contended that the State’s construction and

placement of Highway 3 and Culvert 239 caused an unnatural increase in the amount of

water that ran off the highway onto the rockfall site, ultimately causing the slab to fall

onto their home. Deschner and Lodge called two experts who concluded that Culvert 239

increased the amount of water at the fall site, causing the slab to fall.

¶6     The    State presented     testimony from       various    Montana    Department of

Transportation (MDT) employees, engineers, hydrologists, geologists, and water resource

specialists that contradicted Deschner and Lodge’s experts. The State presented evidence

that pieces of the Rims fall off naturally and will continue to fall off as a result of natural

geologic processes; Deschner and Lodge were aware that pieces of the Rims fall off

naturally; the State placed Culvert 239 in a natural drainage; construction of Highway 3

lessened the amount of water that historically reached the area above Deschner and

Lodge’s property; Culvert 239 was plugged and did not allow moisture to be discharged

through it for the majority of its existence; and that any water that did flow through

Culvert 239 when it was not plugged during infrequent rain events did not pool behind

the slab that fell on Deschner and Lodge’s house. Eight of the State’s experts opined that

the placement of Culvert 239 was not a substantial factor in causing the rockfall.

¶7     Deschner and Lodge proposed two jury instructions on inverse condemnation.

Proposed Instruction No. 12 stated:

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      For Plaintiffs’ claim of inverse condemnation against the State of Montana,
      you are instructed as follows:

      (1)    The Court has determined that Culvert 239 was placed according to
      the plans for the reconstruction of Highway 3 in 1963.
      (2)    For you to determine is whether the water flowing from Culvert 239
      proximately caused Plaintiffs’ damages.

Alternatively, Deschner and Lodge’s proposed Instruction No. 12a stated:

      For Plaintiffs’ claim of inverse condemnation against the State of Montana,
      you as the jury must determine the following:

      (1)    Whether Highway 3 and its Culvert 239 was a public improvement
      as deliberately planned and built.
      (2)    If Highway 3 and its Culvert 239 was a public improvement, was the
      water that flowed from it the proximate cause of Plaintiffs’ damages.

The District Court rejected both of Deschner and Lodge’s proposed instructions, and

instead gave Instruction No. 29. Instruction No. 29 listed the Albers Factors that this

Court adopted in Rauser v. Toston Irrigation District, 172 Mont. 530, 565 P.2d 632

(1977). Instruction No. 29 stated:

      In order to recover damages under their inverse condemnation claim against
      the State of Montana, plaintiffs must show the following:

      (1)    The damage was reasonably foreseeable;
      (2)    The likelihood of public works not being engaged in because of
      unforeseen and unforeseeable direct physical damage to real estate is
      remote;
      (3)    That they, as property owners, suffered direct physical damage to
      their properties as the proximate result of the works as deliberately planned
      and carried out;
      (4)    The cost of such damage can better be absorbed, and with infinitely
      less hardship, by the taxpayers as a whole, than by owners of the individual
      parcels; and
      (5)    If they go uncompensated they would contribute more than their
      proper share to the public undertaking.



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Deschner and Lodge objected to Instruction No. 29, arguing the Albers Factors in Rauser

did not reflect current law regarding inverse condemnation in Montana.

¶8     The jury returned a Special Verdict. Pertinent to this appeal, the jury found: (1)

the State was not negligent; (2) Deschner and Lodge’s negligence was a substantial factor

in bringing about their own damages; (3) the State contributed 0% and Deschner and

Lodge contributed 100% to the cause of Deschner and Lodge’s damages; and (4) the

State did not inversely condemn Deschner and Lodge’s property.

                              STANDARDS OF REVIEW

¶9     We review for an abuse of discretion whether the district court correctly instructed

the jury. State v. Thorp, 2010 MT 92, ¶ 32, 356 Mont. 150, 231 P.3d 1096. The test for

an abuse of discretion is whether the district court acted arbitrarily without employment

of conscientious judgement or exceeded the bounds of reason resulting in substantial

injustice. Tarlton v. Kaufman, 2008 MT 462, ¶ 19, 348 Mont. 178, 199 P.3d 263.

¶10    In reviewing whether a district court properly gave a particular jury instruction, we

consider that instruction in its entirety in connection with the other instructions given and

in association with the evidence presented at trial. Busta v. Columbus Hosp., 276 Mont.

342, 359, 916 P.2d 122, 132 (1996). We review jury instructions in their entirety to

determine if the instructions given by a district court fully and fairly instruct the jury on

the law applicable to the case. Tarlton, ¶ 19. A district court’s refusal to give a proposed

jury instruction only constitutes reversible error when “such refusal affects the substantial

rights of the party proposing the instruction, thereby prejudicing [the party].” Busta, 276

Mont. at 360, 916 P. 2d at 133. The party assigning error must show prejudice to prevail,

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and we will not find prejudice if the jury instructions in their entirety state the applicable

law of the case. Tarlton, ¶ 19.

                                       DISCUSSION

¶11    Whether the District Court’s jury instruction on inverse condemnation was
       erroneous.

¶12    Deschner and Lodge argue the District Court erred in giving Instruction No. 29

because it is not a full, fair, and accurate representation of inverse condemnation law in

Montana. Deschner and Lodge contend any test for inverse condemnation must be

evaluated for conformity with Article II, Section 29 of the Montana Constitution, which

provides: “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.”

¶13    Although the District Court instructed the jury on the Albers Factors in its inverse

condemnation instruction, Deschner and Lodge note that this Court has only applied the

Albers Factors in Rauser, and our case law since Rauser reflects that recovery on an

inverse condemnation claim is appropriate when property owners can demonstrate that a

property incurred damage proximately caused by a public improvement that was

deliberately planned and built. See Rauser, 172 Mont. at 539, 565 P.2d at 638; see also

Kafka v. Mont. Dep’t of Fish, Wildlife & Parks, 2008 MT 460, 348 Mont. 80, 201 P.3d 8;

Buhmann v. State, 2008 MT 465, 348 Mont. 205, 201 P.3d 70; Knight v. City of

Missoula, 252 Mont. 232, 827 P.2d 1270 (1992); Thelen v. City of Billings, 238 Mont. 82,

776 P.2d 520 (1989); Adams v. Dep’t of Highways, 230 Mont. 393, 753 P.2d 846 (1988);


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Knight v. City of Billings, 197 Mont. 165, 642 P.2d 141 (1982). Consistent with these

post-Rauser holdings, Deschner and Lodge contend that inverse condemnation claims

require satisfaction of only four elements: (1) a compensable property interest; (2)

damage to that property interest; (3) a public improvement; and (4) causation. Deschner

and Lodge assert that the first and third elements are questions of law, and as a matter of

law, their home is a compensable property interest and the Highway and Culvert are

public improvements. Thus, Deschner and Lodge contend that only the second and

fourth elements were issues for the jury to decide. Deschner and Lodge contend the

District Court erred when it rejected their instruction that provided they were entitled to

recover on their inverse condemnation claim if the jury found that the highway and

culvert were (a) deliberately planned and built and (b) the proximate cause of Deschner

and Lodge’s damages.

¶14    Deschner and Lodge argue in the alternative that if Rauser does define inverse

condemnation law in Montana, then Instruction No. 29 is inaccurate because it applied

the Albers Factors as elements, and not “guides.” See Rauser, 172 Mont. at 539, 398

P.2d at 638. Deschner and Lodge assert that the District Court’s instruction on inverse

condemnation misstated the law.

¶15    The State contends that Deschner and Lodge’s argument ignores that Rauser is

established case law and that the evidence testified to and admitted supports the jury’s

verdict. Because the District Court relied on established precedent, the State argues the

District Court did not abuse its discretion in instructing the jury on inverse condemnation.

Alternatively, the State argues that if the District Court did abuse its discretion in relying

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on Rauser when instructing the jury, such error would be harmless because the jury found

that the State did not cause Deschner and Lodge’s alleged damages.

¶16      In Rauser, this Court addressed whether an inverse condemnation claim requires a

showing of negligence in design, construction, or operation of the public project. Rauser,

172 Mont. at 536, 565 P.2d at 636. We held: “Montana’s case law does not require a

showing of negligence or a theory of negligence when faced with deliberate or intentional

acts.” Rauser, 172 Mont. at 537, 565 P.2d at 637. We then went on to adopt, as guides,

the five Albers Factors:1

         (1) the damage to this property, if reasonably foreseeable, would have
         entitled the property owners to compensation; (2) the likelihood of public
         works not being engaged in because of unforeseen and unforeseeable
         possible direct physical damage to real estate is remote; (3) the property
         owners did suffer direct physical damage to their properties as the
         proximate result of the works as deliberately planned and carried out; (4)
         the cost of such damage can better be absorbed, and with infinitely less
         hardship, by the taxpayers as a whole, than by owners of the individual
         parcels, and (5) “the owner of the damaged property, if uncompensated,
         would contribute more than his proper share to the public undertaking.”

Rauser, 172 Mont. at 539, 565 P.2d at 638 (citing Albers, 398 P.2d at 136 (quoting

Clement v. State Reclamation Board, 226 P.2d 897, 905 (Cal. 1950))).

¶17      Our holding in Rauser is more noteworthy for establishing what is not required to

bring a claim for inverse condemnation—negligence—than what is required. Although

we adopted the Albers Factors as guides in an inverse condemnation claim, we did not

actually apply them in Rauser, nor have we applied them in any case since Rauser. As

Deschner and Lodge correctly point out, our subsequent case law only references Rauser


1
    Adopted from Albers v. County of Los Angeles, 398 P.2d 129, 137 (Cal. 1965).
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for the premise that: “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.” Knight v. Missoula, 252 Mont. 232,

243, 827 P.2d 1270, 1276 (1992) (citing Rauser, 172 Mont. 530, 565 P.2d 632). We

agree with Deschner and Lodge that the test for inverse condemnation must be evaluated

within the context of Article II, Section 29 of the Montana Constitution, which our

subsequent case law provides.         To the extent that the Albers Factors may be

incommensurate with Article II, Section 29, they should not be strictly applied as

elements of an inverse condemnation claim.

¶18    Although Deschner and Lodge’s argument concerning the applicability of the

Albers Factors is well taken, our analysis cannot end there. How the Albers Factors

should be or were applied is not the dispositive issue in this case. All parties agree that in

order to recover on their inverse condemnation claim, Deschner and Lodge must establish

that the State caused their damages. Because the jury did not find that the State inversely

condemned Deschner and Lodge’s property, it did not reach the issue of causation within

the context of the inverse condemnation claim. It did, however, answer this question as it

pertained to Deschner and Lodge’s negligence claim. Specifically, question six on the

special verdict form asked the jury: “What percentage, if any, do you find each party

contributed to the cause of Plaintiffs’ damages?” The jury answered the question: “State

of Montana 0% at fault.”

¶19    Although this question was asked in the context of Deschner and Lodge’s

negligence claim, causation of damages was a contested issue that was common to both

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the negligence and inverse condemnation claims. The damages that may have been

caused by a potential inverse condemnation are indistinct from the damages that may

have been caused by any potential negligence on the part of the State. The distinction

between the two claims lies in the basis for imputing liability to the State, not in the

damages resulting from that liability.

¶20    Deschner and Lodge contend that the jury’s answer to Question 6 was, in fact, an

allocation of negligence. But that is not what Question 6 explicitly asked; it asked the

jury to allocate the parties’ respective contributions to “the cause of Plaintiffs’ damages.”

Further belying Deschner and Lodge’s contention is that questions as to whether the State

was negligent and, if so, whether its negligence was a substantial factor in bringing about

Deschner and Lodge’s damages, were already submitted to the jury as Questions 1 and 2.

¶21    In Baldauf v. Arrow Tank & Eng’g Co., we held:

       The use of a special verdict form is left to the discretion of the trial court.
       “While it is within the trial court’s discretion to structure the form and
       frame the questions of a special verdict, the interrogatories must be
       adequate to enable the jury to determine the factual issues essential to
       judgment.” We use a three-part standard to determine the adequacy of a
       special verdict form:

       (1)   whether, when read as a whole and in conjunction with the general
       charge, the interrogatories adequately presented the contested issues to the
       jury;

       (2)    whether the submission of the issues to the jury was fair; and

       (3)   whether the ultimate questions of fact were clearly submitted to the
       jury.

Baldauf, 1999 MT 81, ¶ 49, 294 Mont. 107, 979 P.2d 166 (internal citations omitted)

(quoting Kinjerski v. Lamey, 194 Mont. 38, 41, 635 P.2d 566, 568 (1981)). As noted

                                             10
above, Instruction No. 29 incorrectly required Deschner and Lodge to prove elements to

their inverse condemnation claim beyond that which Article II, Section 29 of the

Montana Constitution and our case law subsequent to Rauser require. Nevertheless,

when read in the context of the given instructions in their entirety, in connection with the

evidence presented at trial, and in light of the jury’s answer regarding causation on the

special verdict form, we conclude that the District Court’s refusal to give Deschner and

Lodge’s proposed jury instruction does not constitute reversible error because Deschner

and Lodge failed to establish that the State caused their damages. Therefore, Deschner

and Lodge’s substantial rights were not affected and they were not prejudiced by the

given instruction and the District Court’s refusal of their alternative instructions.

                                      CONCLUSION

¶22    Both the District Court’s inverse condemnation instruction, as well as the

alternative instructions offered by Deschner and Lodge, required Deschner and Lodge to

prove that the State was the proximate cause of their damages. The elements a plaintiff

must prove in an inverse condemnation claim are (1) that the public improvement was

deliberately planned and built; and (2) that, as planned and built, the public improvement

proximately caused damage to the plaintiff’s property. Juries should be so instructed.

Nevertheless, irrespective of the other elements of inverse condemnation on which the

jury was instructed in this case, Deschner and Lodge failed to prove the essential element

of causation. Therefore, the District Court’s refusal of their proposed instruction in lieu

of Instruction No. 29 did not affect their substantial rights, and did not prejudice them.



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¶23   Affirmed.


                            /S/ JAMES JEREMIAH SHEA


We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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