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Deschner v. State

Supreme Court of Montana

February 28, 2017

JANE DESCHNER and JON LODGE, Plaintiffs and Appellants,
v.
STATE OF MONTANA, DEPARTMENT OF HIGHWAYS, Defendant and Appellee.

          Submitted on Briefs: December 7, 2016

         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

          For Appellants: Kenneth D. Tolliver, Joshua P. Oie, Tolliver Law Firm, P.C., Billings,

          For Appellee: Calvin J. Stacey, Bryan M. Kautz, Stacey, Funyak & Kautz, Billings,

          OPINION

          James Jeremiah Shea, Justice

         ¶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 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:

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 ...

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