Wittman v. City of Billings

2022 MT 129

• Court: Montana Supreme Court
• Decided: July 5, 2022
• Docket: DA 20-0609
• Status: Published

Opinion

07/05/2022

DA 20-0609 Case Number: DA 20-0609

IN THE SUPREME COURT OF THE STATE OF MONTANA 2022 MT 129

ARIANE WITTMAN and JEREMY TAYLEN,

Plaintiffs and Appellants,

v.

CITY OF BILLINGS,

Defendant and Appellee.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 19-1124 Honorable Michael G. Moses, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Tucker P. Gannett (argued), Amanda Beckers Sowden, Gannett Sowden Law, PLLC, Billings, Montana

For Appellee:

Gerry P. Fagan (argued), Afton E. Ball, Moulton Bellingham, PC, Billings, Montana

For Amicus Montana Trial Lawyers Association:

Raphael Graybill (argued), Graybill Law Firm, P.C., Great Falls, Montana

Argued and Submitted: September 10, 2021

Decided: July 5, 2022

Filed:

c ir-641.—if __________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court.

¶1 Ariane Wittman and Jeremy Taylen (collectively “Wittmans”) appeal the Thirteenth

Judicial District Court’s memorandum and order (Order) denying their motion for partial

summary judgment and dismissing their inverse condemnation claim against the City of

Billings (City). We affirm.

Did the District Court err by entering summary judgment in favor of the City on Wittmans’ inverse condemnation claim?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The Wittmans own and reside in a home located within the City of Billings.

Pursuant to City regulations, their home is attached to the City’s public sewer system. On

June 20, 2019, calamity struck when a grease clog in the City’s sewer main caused 1,000

gallons of raw sewage to back up into the Wittmans’ basement, an event known in official

vernacular as a Sanitary Sewer Overflow (SSO). To recover their damages, the Wittmans

filed suit against the City, proceeding on a singular theory of inverse condemnation.

¶3 Discovery revealed that grease accumulation in public sewer systems is a common

issue that occurs when users improperly dispose grease-based material in the system. A

City expert witness stated that “sewer systems are designed to basically put down toilet

paper, fecal matter, and urine . . . . [But] [p]eople treat their sewer systems as trash cans.”

The City has enacted ordinances regulating the disposal of grease by industrial users, who

are the potentially significant offenders, although no such regulations exist for residential

users. As a City witness explained, municipalities “can do virtually nothing” to preempt

residents from discharging grease into the system. The grease “collects on pipe walls, 2 and . . . keeps collecting until it eventually chokes off the pipe . . . flow,” which occurs “no

matter what type of pipe” is used. The City annually cleans all 500-plus miles of its sewer

system under a program the Wittmans acknowledge is “robust” and more thorough than

those implemented by other major Montana municipalities. Despite this effort, the City

experiences ten to fifteen SSOs annually, affecting about 0.04687 percent of those

connected to the system. During oral argument, the City explained that not all of these

SSOs are caused by grease accumulation. Tree roots entering the sewer system and the

accumulation of other debris also cause SSOs and contribute to the problem.

¶4 The Wittmans moved for summary judgment on liability, arguing that “grease

accumulating in public sewer mains is an inherent and inescapable consequence of

operating public sewers” and therefore, as a matter of law, their home had been damaged

for public use without just compensation. The District Court denied the Wittmans’ motion

and ruled in favor of the City, concluding that:

Inverse condemnation requires deliberate affirmative action by the municipality to take the property. Thus, the government cannot accidentally, inadvertently, or erroneously assert the power of eminent domain for public use. Plaintiffs fail to establish the City’s deliberate actions caused the damage through preventative maintenance of the sewer lines and the nature of the . . . system.

Because the Wittmans did not establish that their damage was caused by the deliberate

actions of the City, the District Court dismissed their inverse condemnation claim, and,

because it was their sole claim, the entire suit.

3 STANDARD OF REVIEW

¶5 “We review de novo a district court’s grant or denial of summary judgment.”

Brishka v. State, 2021 MT 129, ¶ 9, 404 Mont. 228, 487 P.3d 771 (citing Crane Creek

Ranch, Inc. v. Cresap, 2004 MT 351, ¶ 8, 324 Mont. 366, 103 P.3d 535). “Summary

judgment is appropriate when there are no genuine issues of material fact and the moving

party is entitled to judgment as a matter of law.” Brishka, ¶ 9 (citing Borges v. Missoula

Cty. Sheriff’s Office, 2018 MT 14, ¶ 16, 390 Mont. 161, 415 P.3d 976). “The district court’s

conclusion that no genuine issue of material fact exists and that the moving party is entitled

to judgment as a matter of law is a conclusion of law which we review for correctness.”

Krajacich v. Great Falls Clinic, LLP, 2012 MT 82, ¶ 8, 364 Mont. 455, 276 P.3d 922

(quoting Hinderman v. Krivor, 2010 MT 230, ¶ 13, 358 Mont. 111, 244 P.3d 306).

DISCUSSION

¶6 At the core of the arguments made in this case is the nature of Montana inverse

condemnation, the only basis upon which the Wittmans seek to hold the City responsible

for their damages. The question is whether the sewer backup into Wittmans’ basement

constitutes a constitutional damaging of Wittmans’ property under the law of inverse

condemnation for which the City is liable.

¶7 Wittmans first argue the District Court’s ruling “demonstrates a fundamental

misapprehension” of “the distinction between the affirmative (legislative) exercise of the

power of eminent domain and the passive taking or damaging of property incident to

governmental takings.” Wittmans argue that eminent domain and inverse condemnation

4 are distinct theories that permit recovery under the application of differing standards.

According to their argument, while eminent domain requires a showing of deliberate or

affirmative action by the government to occupy or damage the property in question, inverse

condemnation permits recovery for any damage to private property, including damage they

describe variously as “incidental,” “inadvertent,” or “passive,” which results from a

government project. They describe Montana’s inverse condemnation law as “find[ing] its

corollary in strict liability.” Somewhat inconsistently, Wittmans also offer the following

summary construct of Montana inverse condemnation law, which they label “IC,” drawn

from our cases, as follows:

From Root-Butte, Less, Rauser, and their significant progeny, th[e] Court can conclude that IC claims in Montana 1) allow for the recovery of sufficiently peculiar damages which are the inevitable or reasonably foreseeable consequence of governmental undertakings, and 2) there is no need for the property owner to prove negligence, intent, or other tortious conduct on the part of the condemning party to prevail on an IC claim.

¶8 Wittmans thus contend the District Court’s ruling “runs contrary to well-established,

century old IC law in Montana.” Additionally, and perhaps despite their position that the

District Court clearly departed from established principles, Wittmans and Amicus Montana

Trial Lawyers Association propose that this Court adopt a new formulation, the inverse

condemnation test adopted by the Supreme Court of California in City of Oroville v.

Superior Court, 446 P.3d 304 (Cal. 2019), to provide clarity to Montana law, and because

this Court “has historically relied on California precedent in advancing IC law here.”

¶9 Wittmans’ arguments contain an array of words and concepts that have not

previously been employed in our condemnation jurisprudence, while the above-quoted 5 summary construct they draw from our cases omits elements we have applied. This is not

a criticism; we have recognized this area of the law is complex and challenging to apply.

See Kafka v. Mont. Dep’t of Fish, Wildlife & Parks, 2008 MT 460, ¶ 102, 348 Mont. 80,

201 P.3d 8 (Nelson, J., dissenting) (“Takings jurisprudence itself is ‘a confused body of

law containing contradictory principles and standards.’”) (quoting John D. Echeverria &

Sharon Dennis, The Takings Issue and the Due Process Clause: A Way Out of a Doctrinal

Confusion, 17 Vt. L. Rev. 695, 696 (1993)). But words are important, and the choice of

them is critical in the application of condemnation law. We believe that, overall, there has

been conceptual consistency in our long precedent in this area, and we endeavor here to

add no more criteria; rather, we attempt to bring further clarity to existing precedent by

reducing emphasis on one particular term that could, in isolation, be misleading and raise

the bar for inverse condemnation claims higher than required by our jurisprudence as a

whole. We begin by addressing Wittmans’ proposal to adopt the Oroville formulation, and

then turn to their other arguments.

¶10 Oroville involved a public sewer line back-up onto private property, there an office

building. Oroville, 446 P.3d at 307. Drawing from prior holdings, the Oroville Court

stated the test it had developed for inverse condemnation liability as follows: “the damage

to private property must be substantially caused by an inherent risk presented by the

deliberate design, construction, or maintenance of the public improvement,” Oroville, 446

P.3d at 312, explaining it had replaced the previously used “proximately caused” standard

with “substantially caused” in Belair v. Riverside Cty. Flood Control Dist., 764 P.2d 1070

6 (Cal. 1988). Oroville, 446 P.3d at 311. The “proximately caused” standard had, in turn,

been adopted by California in Albers v. Cty. of L.A., 398 P.2d 129 (Cal. 1965), a case which

this Court relied upon in Rauser v. Toston Irrigation Dist., 172 Mont. 530, 537-39, 565

P.2d 632, 637-38 (Cal. 1977). In Belair, the California Court explained that its Albers

decision “contained the seeds of confusion through its combination of ‘proximate cause’

terminology with the elimination of foreseeability as an element of inverse condemnation,”

a conceptual incongruity first pointed out in a 1968 law review article. Belair, 764 P.2d at

1074 (citing Albers, 398 P.2d 129); Arvo Van Alstyne, Inverse Condemnation: Unintended

Physical Damage, 20 Hastings L.J. 431 (1968). Albers had held that “any actual physical

injury to real property proximately caused by the improvement as deliberately designed

and constructed is compensable [in an inverse condemnation action] whether foreseeable

or not.” Albers, 398 P.2d at 137. Citing the Van Alstyne article, the California Court had

previously noted the Albers language was “potentially confusing” since “the ‘proximate

cause’ doctrine of tort law is often defined in terms of ‘foreseeability,’ whereas the Albers

decision, which imposed liability absent foreseeability, could not have intended such a

construction” of the term proximate cause. Holtz v. Superior Court of S.F., 475 P.2d 441,

445 n.9 (Cal. 1970). Professor Van Alstyne, endeavoring to explain in 1968 the particular

meaning that “proximate cause” must hold in the context of California inverse

condemnation law, observed: “[T]he language of several opinions suggests that [proximate

cause in the context of inverse condemnation without fault] requires a convincing showing

7 of a ‘substantial’ cause-and-effect relationship which excluded the probability that other

forces alone produced the injury.” Van Alstyne, supra, at 436.

¶11 Importantly, the California Court, in adopting Professor Van Alstyne’s analysis, did

not reason that employing the concept of “substantially caused” was necessary to remedy

any confusion that negligence concepts were being improperly applied to inverse

condemnation analysis, see Belair, 764 P.2d at 1074-75, but, rather, that the change was

necessary to resolve confusion stemming from the apparent paradox its Albers decision

created: that a plaintiff can succeed on an inverse condemnation claim even if the physical

damage to property was not “foreseeable” so long as it was “proximately caused”—a

concept that necessarily involves a foreseeability analysis—by the public improvement.

See Oroville, 446 P.3d at 311; Belair, 764 P.2d at 1074-75; Holtz, 475 P.2d at 445 n.9.

¶12 In contrast, it is apparent this Court was long ago aware of the paradox identified by

Professor Van Alstyne and recognized by the California Supreme Court in Holtz, Belair,

and ultimately Oroville, leading to that Court’s reformulation of its inverse condemnation

test. Despite drawing from Albers in our Rauser opinion, we did not take from Albers its

premise that a plaintiff can recover in an inverse condemnation action even if the physical

damage caused by the improvement was not foreseeable. Compare Rauser, 172 Mont. at

538-39, 565 P.2d at 637-38, with Albers, 398 P.2d at 137. Indeed, in Rauser we cited to

Professor Van Alstyne’s article, evidencing that our use of “proximate cause” with a

requirement of foreseeability was reasoned and intentional. See Rauser, 172 Mont. at 538,

565 P.2d at 637. The Wittmans’ briefing is explicit on the point that “foreseeability” is

8 and has always been an essential part of Montana inverse condemnation law, that Rauser

established that inverse condemnation damages must be foreseeable, and that, congruently,

the damages they allege here were foreseeable and foreseen by the City. As we have made

clear, “the analysis of proximate cause in the context of an inverse condemnation claim is

indistinguishable from the analysis of proximate cause in the context of a negligence

claim.” Brishka, ¶ 15 (citing Dvorak v. Matador Serv., Inc., 223 Mont. 98, 106, 727 P.2d

1306, 1311 (1986)). This common requirement of establishing causation in an inverse

condemnation action is distinguished from other negligence concepts, such as duty and

breach, which need not be established. Brishka, ¶ 13. Thus, it is evident the California

Supreme Court adopted the “substantially caused” standard to remedy confusion in its own

case precedent that does not exist in ours. For these reasons, and because the issue of

whether a plaintiff may recover on an inverse condemnation claim where the damages are

unforeseen is not raised in this litigation, we decline to depart from our precedent to adopt

Oroville’s “substantially caused” language, as well as the remainder of California’s inverse

condemnation test.1 Wittmans’ remaining arguments challenge other aspects of the law of

condemnation.

1 Not argued in this case is whether the causation element itself within inverse condemnation should be revisited and/or revised in light of developments in general tort law, such as this Court’s decision in Busta v. Columbus Hospital, 276 Mont. 342, 916 P.2d 122 (1996); see Dissent, ¶¶ 54-58. Because this issue, which requires analytical precision, was not raised and argued here, we decline to address it until a case provides proper argument to the Court.

9 Eminent Domain and Inverse Condemnation

¶13 Wittmans argue the District Court failed to apprehend a distinction between eminent

domain and inverse condemnation. They argue that “at no point during the briefing or

argument [before the District Court] did Plaintiffs/Appellants suggest that the City had

asserted ‘the power of eminent domain’ against them.” Because the City did not

affirmatively initiate an eminent domain proceeding to condemn their property, they

contend no affirmative intention or purpose of the City needs to be demonstrated, but,

rather, it is enough for Wittmans to prove the City’s sewer system caused incidental,

inadvertent, or consequential damage to their property, even “passively” damaged them, in

order to recover, a theorem they correlate to strict liability. The City responds to this

argument by swinging for the fences, arguing that inverse condemnation is indeed premised

upon the power of eminent domain, and that if Wittmans’ claim does not lie in eminent

domain, there is no condemnation claim at all, noting our holding in State by Dep’t of

Highways v. Helena, 193 Mont. 441, 445-46, 632 P.2d 332, 335 (1981), that “reasonable

burden[s]” upon private property “directly connected with matters of public health, safety

and welfare” may be imposed by the state without compensation, and are distinguished

from property taken for public use by “an exercise of the eminent domain power.”

¶14 Article II, Section 29, of the Montana Constitution, entitled Eminent Domain,

provides that “[p]rivate 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.” Wittmans correctly state that the power to take or damage private property

10 does not originate in the Constitution, but is an attribute of sovereignty. “Eminent

domain . . . derives from the power of sovereignty. Eminent domain is the right of the state

to take private property for public use.” Montana Talc Co. v. Cyprus Mines Corp., 229

Mont. 491, 501, 748 P.2d 444, 450 (1987) (citing § 70-30-101, MCA). The Supreme Court

of Oregon has noted that a “taking” of property “is a shorthand description for an exercise

of the government’s power of eminent domain, which is the power of the sovereign to take

property for ‘public use’ without the property’s owner’s consent.” Dunn v. City of

Milwaukie, 328 P.3d 1261, 1266 (Or. 2014) (Applying Oregon’s “taking or damaging”

constitutional eminent domain provision in an inverse condemnation case.) (emphasis

added). We recently stated, “[a] government taking of property is not in and of itself

unconstitutional; it must simply be compensated . . . . [T]he remedy for a property owner

who challenges such action may be ‘just compensation.’” Cottonwood Envtl. Law Ctr. v.

Knudsen, 2022 MT 49, ¶ 20, 408 Mont. 57, 54, 505 P.3d 837, 841 (citing Lingle v. Chevron

U.S.A. Inc., 544 U.S. 528, 538, 125 S. Ct. 2074, 2081 (2005), and Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1030, 112 S. Ct. 2886, 2901 (1992)). Thus, while eminent domain

does not originate in the Constitution, Section 29, like its Fifth Amendment counterpart in

the U.S. Constitution, is the source of the property owner’s right to receive just

compensation from the government when property is taken, or damaged, for a public use.

Section 29 secures the right of just compensation when the government initiates

proceedings to condemn private property, and also secures the right in cases where the

11 property owner who suffers damage “inversely” initiates the condemnation proceeding

against the government. As explained by the Supreme Court of Oregon in Dunn:

Typically, government exercises its eminent domain power by initiating a condemnation proceeding and, through that proceeding, compensating a property owner before appropriating property for a public purpose . . . . But the power of eminent domain can be exercised de facto as well as well as de jure, which occurs when the government takes property interests through its actions without first initiating condemnation proceedings. When that happens, the property owner can bring an inverse condemnation action to obtain the just compensation.

Dunn, 328 P.3d at 1266 (internal citations omitted; emphasis in original). “Such a suit is

‘inverse’ because it is brought by the affected owner, not by the condemnor. The owner’s

right to bring such a suit derives from the self-executing character of the constitutional

provision with respect to condemnation.” Wohl v. City of Missoula, 2013 MT 46, ¶ 55,

369 Mont. 108, 300 P.3d 1119 (quoting Kirby Forest Indus., v. U.S., 467 U.S. 1, 5 n.6, 104

S. Ct. 2187, 2191 n.6 (1984) (internal citation omitted); see also Less v. Butte, 28 Mont.

27, 33, 72 P. 140, 141 (1903) (holding the predecessor eminent domain provision in the

1889 Montana Constitution “is self-executing, and requires no legislation to rouse it from

dormancy.”). In Less, an inverse condemnation case, we explained that the predecessor

provision was “both mandatory and prohibitory,” and reasoned that “[i]t seems very clear

to us that this section was drafted in the broad language stated for the express purpose of

preventing an unjust or arbitrary exercise of the power of eminent domain.” Less, 28 Mont.

at 31-32, 33, 72 P. at 141. Thus, the authority for inverse condemnation is the same as for

direct condemnation, and there is no basis in the text of Section 29 to conclude that the

standards to obtain just compensation differ depending upon which party initiates the 12 proceeding. “[T]he test for inverse condemnation must be evaluated within the context of

Article II, Section 29 of the Montana Constitution.” Deschner v. State, 2017 MT 37, ¶ 17,

386 Mont. 342, 390 P.3d 152. Then, as specifically relevant to this case, the “or damaged”

language of Section 29 and its similar predecessor provision in the 1889 Constitution have

long been held to grant an owner the right to receive compensation for property damaged

by the State’s public use of it, even if not entirely “taken” by the State. See generally Root

v. Butte, A. & P. Ry., 20 Mont. 354, 51 P. 155 (1897); Less, 28 Mont. 27, 72 P. 140.2

For Public Use

¶15 Based upon their argument distinguishing eminent domain and inverse

condemnation, Wittmans assert they need only prove their property was inadvertently or

incidentally damaged by the City’s sewer system to permit recovery in inverse

condemnation. However, their arguments fail to incorporate the necessity of proving the

constitutional premise of condemnation litigation: that the government acted to take or

damage their property “for public use.” Mont. Const. art. II, § 29.3

2 The relevant language of this constitutional provision remained the same under both the 1889 and 1972 Montana Constitutions. See Root, 20 Mont. at 358, 51 P. at 156; Less, 28 Mont. at 31, 72 P. at 141. 3 Citing Less, Wittmans contend that, “[t]he homeowner could thus recover for the City ‘inadvertently’ damaging his property by dropping the grade of the street,” and citing Knight v. City of Billings, 197 Mont. 165, 642 P.2d 141 (1982), they contend that “incidental . . . harms occasioned by public undertakings are compensable for affected private property owners.” However, Less did not hold that “inadvertent” damage was recoverable, or use that term in the opinion. Likewise, Knight-Billings did not hold that “incidental” damage was recoverable, or use that term.

13 ¶16 Wittmans emphasize our holdings that an inverse condemnation claim does not

require proof of negligence by the government, but this proposition is correct only because,

in such actions, it must instead be proven that the government acted to take or damage

property for public use. “Where, as here, the damages are known or knowable and are an

inevitable result of the intentional undertaking of the project, there is no need to show

negligent design, construction or operation.” Rauser, 172 Mont. at 538, 565 P.2d at 637.

“Montana’s case law [on inverse condemnation] does not require a showing of negligence

or a theory of negligence when faced with deliberate or intentional acts.” Deschner, ¶ 16

(quoting Rauser, 172 Mont. at 537, 565 P.2d at 637). “The damages that may have been

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

been cause 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.” Deschner, ¶ 19.

Consequently, “[t]he initial question in an inverse condemnation case is not whether the

actions of the governmental entity were the proximate cause of the plaintiff’s damages.

Instead, the initial question is whether the government entity’s actions constituted the

taking or damaging of property for public use.” Henderson v. City of Columbus, 827

N.W.2d 486, 492 (Neb. 2013).

¶17 Our case precedent explains the necessary showing of “for public use.” In Rauser,

we explained that, “[i]t is enough to show the damages were proximately caused by the

undertaking of the project and a reasonabl[y] foreseeable consequence of the

14 undertaking.” Rauser, 172 Mont. at 538, 565 P.2d at 637 (emphasis added).4 Citing

Rauser, we thereafter held 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)

(emphasis added). Citing Rauser and Knight, we explained in Deschner that “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.” Deschner ¶ 22

(emphasis added); see also Brishka, ¶ 13.

¶18 Wittmans’ and Amicus Montana Trial Lawyers Association’s briefing assumes,

under the first part of the Deschner formulation, that by simply undertaking to construct a

public utility or improvement, a government entity necessarily “deliberately plan[s] and

build[s]” it. However, it is evident that all public projects and improvements are

“deliberately” planned and built in the sense that the municipality intended the

improvement’s construction—public improvements do not randomly appear without

deliberate action. Consequently, under Wittmans’ interpretation, “deliberately” adds

nothing to the phrase “planned and built,” and is rendered meaningless. However, the word

4 The City correctly argues about Rauser, “[c]rucially, however, the Court did not decide the government was liable for inverse condemnation simply because it built a project that caused property damage.”

15 is not meaningless, particularly as it is read with second part, “that, as planned and

built . . . .” Implicit in the formulation is requisite foreseeability; that is, from the project’s

deliberate design and construction, damage to private property was foreseeable, and, as

designed and constructed, did cause damage to the property. See Deschner, ¶ 22; Rauser,

172 Mont. at 538-39, 565 P.2d at 637-38 (property damage must be “a reasonabl[y]

foreseeable consequence of the undertaking,” or, the damage was “proximately caused to

[the] property by a public improvement as deliberately planned and built.” citing Albers,

398 P.2d at 136.).

¶19 We pause here to note the repeated use of the term “inevitable” damage within the

Rauser opinion. Rauser, 172 Mont. at 538, 565 P.2d at 637. The Rauser plaintiffs alleged

the construction of an irrigation project caused permanent damage to their property, and

introduced evidence that the defendant irrigation district, prior to construction of the

project, had received a report predicting that area flooding would result from the project—

flooding which, in fact, did occur after construction. Rauser, 172 Mont. at 533-34, 565

P.2d at 635-36. We thus noted that, “it was inevitable that Rausers’ land would be damaged

by the construction of the project,” and reasoned that the damages were “known or

knowable and [were] an inevitable result of the intentional undertaking of the project.”

Rauser, 172 Mont. at 538, 565 P.2d at 637. The term “inevitable” has not since been

applied by the Court in inverse condemnation cases, but from its use in Rauser, arguments

have here been made that, where property damages caused by a public project are

“inevitable,” a condemnation claim can be sustained. To be sure, property damage shown

16 to be an inevitable consequence of a public project would clearly satisfy the public use

foreseeability standards articulated above, as it did in Rauser. However, to the extent that

“inevitable” damage provides a higher bar than “foreseeable” damage, the latter standard

is sufficient. See Rauser, 172 Mont. at 538, 565 P.2d at 637 (“[i]t is enough to show the

damages were . . . a reasonabl[y] foreseeable consequence of the undertaking.”).

Nature of the Damage

¶20 Related to the question of whether a government entity has taken or damaged

property for public use is the nature and magnitude of the alleged damage. This Court has

identified this issue throughout the history of our condemnation jurisprudence.

[I]t is doubtless true that the constitution does not authorize a remedy for every diminution in the value of property which is caused by public improvement, the damages for which compensation is to be made being a damage to the property itself, and not including mere infringement of the owner’s personal pleasure or enjoyment.

Less, 28 Mont. at 33, 72 P. at 141-42. The Less Court also contrasted compensable inverse

condemnation damage claims from merely those involving a “temporary spoliation or

invasion of the property.” Less, 28 Mont. at 32-34, 72 P. at 141-42.

¶21 In Root, addressing an inverse condemnation claim based upon environmental

effects upon residential property from operating trains in the city, such as smoke, vibration,

whistles, bells, engine noises, and interference with property access, we permitted the claim

to proceed “for such damages as [the property owner] may have specifically sustained . . .

which are not common to the public at large.” Root, 20 Mont. at 358, 51 P. at 156

(emphasis added). We explained that, generally:

17 [i]t is not a natural and a necessary result of the operation of a railroad, that, in lawfully occupying a street in a city, premises 46 feet distant from a track are damaged in any sum, for which recovery can be had, on account of the proximity of the tracks, or operation of the railroad.

Root, 20 Mont. at 357, 51 P. at 155; see also Evenhus v. City of Great Falls, No.

DDV-06-900, 2012 WL 10702891 (Mont. Eight Judicial Dist. 2012) (A non-taking

damaging occurs if a public improvement or use causes uncommon physical damage or

impairment of a cognizable property right, where “uncommon” means “[u]ncommon to

similarly situated property owners or the public at large.”).

¶22 About the property damage determined to be a public use in Rauser, we said the

government irrigation project had “caused the land to be permanently invaded,” which, as

alleged, “amounted to the taking of a flood easement” on the property. Rauser, 172 Mont.

at 533, 536, 565 P.2d at 635-36. In this regard, we held, “[i]t is implicit in inverse

condemnation that the extent of the damage be of such a degree as to amount to a taking

of an interest in the property damaged.” Rauser, 172 Mont. at 538, 565 P.2d at 637

(emphasis added).

¶23 In Adams v. Department of Highways, 230 Mont. 393, 753 P.2d 846 (1988), we

rejected an inverse condemnation claim by landowners premised upon the impacts to their

property from the opening of the Reserve Street corridor. We stated, “[t]here 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.” Adams, 230

Mont. at 401, 753 P.2d at 851. We distinguished Adams in Knight-Missoula, another 18 road-based inverse condemnation claim, explaining that Adams “does not stand for the

proposition that all takings claims arising from increased traffic and the effects thereof are

to be dismissed as a matter of law,” but reaffirmed Rauser’s holding that “the extent of

damage be of such a degree” as to constitute “a taking of an interest in the property

damaged.” Knight-Missoula, 252 Mont. at 241, 243, 827 P.2d at 1275, 1276-77 (emphasis

added).

¶24 Finally, as referenced above, the Court has distinguished impacts upon private

property occasioned by the exercise of police power from the taking or damaging of

property by the exercise of eminent domain.

If the state action is a proper exercise of the police power and is directly connected with matters of public health, safety and welfare, a reasonable burden may be imposed upon private property without compensation . . . . On the other hand, if the state action is an exercise of the eminent domain power whereby private property is taken for a public use, just compensation is required.

State by Dep’t of Highways, 193 Mont. at 445-46, 632 P.2d at 335 (citation omitted); see

also Yellowstone Valley Elec. Coop. v. Ostermiller, 187 Mont. 8, 608 P.2d 491 (1980);

McTaggart v. Montana Power Co., 184 Mont. 329, 602 P.2d 992 (1979); and

Knight-Missoula, 252 Mont. at 242, 827 P.2d at 1276. In deciding these cases, the Court

has assessed the extent of the benefit to public health, safety and welfare as compared to

the magnitude of the interference with or impact upon private property rights. State by

Dep’t of Highways, 193 Mont. at 447, 632 P.2d at 335-36 (“The benefit to the public as a

whole outweighed the temporary deprivation and inconvenience suffered by the [property

owner]. We find that the District Court correctly concluded that when the State required 19 the [property owner] to relocate its utilities, there was no taking in the constitutional sense,

but rather a legitimate use of the police power for which no compensation is required.”)

¶25 Generally summarizing these eminent domain principles implicated by Wittmans’

arguments, an inverse condemnation claim requires a plaintiff to demonstrate a public

project was deliberately planned and built in such a way that the taking or damaging of

private property was foreseeable, and, as planned and built, the project damaged the

plaintiff’s property. For a damage claim less than a complete taking, the property must

have been damaged to such a degree as to constitute a permanent taking of the property,

and not merely have caused an infringement upon enjoyment of the property, a temporary

damage, or a damage common to the public at large.

¶26 We conclude upon the record of this case that Wittmans have not established the

sewer backup was a constitutional damaging of their basement for public use, and thus, a

condemnation. First, the record does not reflect that the City deliberately planned and built

its sewer system in such a way that made damaging their property foreseeable. The City

designed its system to accomplish disposal of “toilet paper, fecal matter, and urine,” not to

accommodate the improper disposal of other products; indeed, no sewer system is capable

of such accommodation. Secondly, the system, “as planned and built,” did not proximately

cause the damage to Wittmans’ property. Deschner ¶ 22. Rather, this backup was caused

by misuse of the system.

20 ¶27 Nor is an inverse condemnation claim established by a statistical possibility that the

Wittmans could have sustained damage from the system. That 0.04687 percent of sewer

users across the City experience some form of an SSO in a given year—from all causes—

does not render the Wittmans’ backup foreseeable. Rather, the damage sustained from the

backup is properly considered an incidental or inadvertent consequence of the operation of

the system. As the District Court reasoned, “the government cannot accidentally,

inadvertently, or erroneously assert the power of eminent domain for public use.” Further,

we cannot conclude that “the extent of the damage [was] of such a degree as to amount to

a taking of an interest in the property damaged.” Rauser, 172 Mont. at 538, 565 P.2d at

637. The damage here was more akin to a “temporary spoliation or invasion of the

property,” Less, 28 Mont. at 32, 72 P. at 141, though we do not categorically hold that

temporary invasions cannot sustain a condemnation claim. See Ark. Game & Fish Comm’n

v. United States, 568 U.S. 23, 36, 133 S. Ct. 511, 521 (2012) (rejecting a categorical bar of

takings claims based upon temporary flooding, and stating, “[t]o reject a categorical bar to

temporary-flooding takings claims, however, is scarcely to credit all, or even many, such

claims. It is of course incumbent on courts to weigh carefully the relevant factors and

circumstances in each case . . . .”).

¶28 The lack of foreseeability here is illustrated by contrasting this matter with our

previous cases involving inverse condemnation. In Knight v. Billings we concluded that

the City inversely condemned properties when it significantly expanded and altered a road

so as to accommodate substantially more traffic. Knight-Billings, 197 Mont. at 169-70,

21 174, 642 P.2d at 143, 145-46. There, the City designed and built the road expansion with

the intention for it to carry more traffic. The decreased property value damages the

plaintiffs asserted—lack of free access to driveways, increased vehicular pollution and

noise, and dangerous sidewalk conditions due to greater proximity to traffic—were the

foreseeable consequences of enlarging a residential road to carry more traffic.

Knight-Billings, 197 Mont. at 173-74, 642 P.2d at 145-46. Indeed, the City initiated a

condemnation proceeding for the property on the other side of the road, a unique fact that

the Court cited to “caution that this holding is limited to the situation here.”

Knight-Billings, 197 Mont. at 173-74, 642 P.2d at 145-46. In Rauser, the State designed

an irrigation system that would foreseeably, and there inevitably, result in the plaintiffs’

property flooding, declining to alter the design before proceeding. Rauser, 172 Mont. at

533-34, 565 P.2d at 635. And in Less, the deliberate choice the municipality made to

re-grade a street—even though the new grade resulted in an abrupt seven-foot drop in front

of the plaintiff’s house—clearly foreseeably resulted in the damage to plaintiff’s property.

Less, 28 Mont. at 31, 72 P. at 141.

¶29 Consistent with this conclusion, other courts have commonly rejected claims of

inverse condemnation, including those with “taking or damaging” constitutional

provisions, based upon single-event sewer backups. See Dunn, 328 P.3d at 1274;

Henderson, 827 N.W.2d at 492; AGCS Marine Ins. Co. v. Arlington Cty., 800 S.E.2d 159,

168 (Va. 2017); City of Dallas. v. Jennings, 142 S.W.3d 310, 315 (Tex. 2004); Edwards v.

Hallsdale-Powell Util. Dist. Knox County, 115 S.W.3d 461, 467 (Tenn. 2003). Similar

22 decisions have been rendered in cases of flooding. See Hampton v. Metro. Water

Reclamation Dist., 57 N.E.3d 1229, 1239 (Ill. 2016); Farmers New World Life Ins. Co. v.

Bountiful City, 803 P.2d 1241, 1244, 1246 (Utah 1990). Cases in which property owners

have succeeded in sewage or flooding takings claims have involved repeated or chronic

invasions that permitted a jury to consider and find that the government, by failing to

correct the source of the repeated overflows, acted intentionally or foreseeably. See Ark.

Game & Fish Comm’n, 568 U.S. at 39, 133 S. Ct. at 522-23 (“[W]hile a single act may not

be enough, a continuance of them in sufficient number and for a sufficient time may prove

[a taking]. Every successive trespass adds to the force of the evidence.”) (internal citation

and quotation omitted); see generally Dishman v. Nebraska Public Power Dist., 482

N.W.2d 580 (Neb. 1992); Dekalb County v. Orwig, 402 S.E.2d 513 (Ga. 1991); Robinson

v. Ashdown, 783 S.W.2d 53 (Ark. 1990).

¶30 Our decision here does not preclude the possibility of establishing that the grease

clog proximately caused the damage to the Wittmans’ home or that the City’s sewer

cleaning program was deficient in a way that the City could be held liable through

negligence, nuisance, or some other basis. See generally Knight-Missoula, 252 Mont. 232,

827 P.2d 1270; Wheeler v. Bozeman, 232 Mont. 433, 757 P.2d 345 (1988). These

alternatives were not pled here and therefore we do not reach them. Further, the difficulties

incumbent in prosecuting inverse condemnation actions have moved several states to

initiate, by statute, programs to compensate landowners who are damaged by actions of the

23 government, an idea that must necessarily be left to the Legislature. See Robert Meltz,

Takings Law Today: A Primer for the Perplexed, 34 Ecology L.Q. 307, 311 (2007).

¶31 We conclude the District Court properly entered summary judgment in favor of the

City, and affirm.

/S/ JIM RICE

We concur:

/S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ LAURIE McKINNON

Justice Dirk Sandefur, dissenting.

¶32 I dissent. Prior to Montana statehood, as it does today, the Fifth Amendment to the

United States Constitution expressly proscribed that private property shall not “be taken

for public use[] without just compensation.” U.S. Const. amend V (emphasis added).1 In

contrast, our 1889 Constitution provided that “[p]rivate property shall not be taken or

damaged for public use without just compensation . . . first made.” Mont. Const. art. III,

§ 14 (1889) (emphasis added). With some additional language not pertinent here, our 1972

Constitution carried forward that identical provision. Mont. Const. art. II, § 29 (“[p]rivate

1 The Fifth Amendment is applicable to the States through the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S. Ct. 2448, 2457 (2001) (citing Chicago, Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226, 235-41, 17 S. Ct. 581, 584-86 (1897) (decided as a matter of Fourteenth Amendment substantive due process without express reference the Fifth Amendment Takings Clause)).

24 property shall not be taken or damaged for public use without just compensation . . . first

made” – emphasis added). The Article II, Section 29 or damaged protection is thus distinct

from and significantly broader than its takings protection and the similar Fifth Amendment

takings protection upon which the Montana takings protection was and remains modeled.

In 1903, we admonished that the broader fundamental Montana constitutional right to just

compensation for private property damaged for or by public use must be strictly enforced

and not “frittered away by construction.” Less v. City of Butte, 28 Mont. 27, 34, 72 P. 140,

142 (1903) (emphasis added). In 1977, we similarly noted that “the tendency under our

system” of government “is too often to sacrifice the individual to the community” and that

it is unreasonable to not require the government to “pay for property which it destroys or

impairs.” Rauser v. Toston Irrigation Dist., 172 Mont. 530, 539, 565 P.2d 632, 638 (1977)

(internal punctuation and citation omitted – emphasis added).

¶33 However, in disregard of our own prior admonitions in Less and Rauser, the Court

today indiscriminately fritters away and eviscerates the fundamental or damaged

protection of private property provided by Article II, Section 29. It does so based on our

historical, and now continuing, failure since Rauser to clearly and consistently articulate

the essential elements of consequential damaging claims, distinct from categorical taking

claims (whether based on actual physical appropriation of private property for public use

or by consequential physical damage to or interference with its use and enjoyment so

substantial to be tantamount to a physical appropriation) and regulatory taking claims.

From Rauser on, we have failed to clearly and consistently define and apply the causation

25 element common to Montana consequential taking and damaging claims derived from

common law tort causation. Despite our repeated recognition that the proximate cause

element of such claims is identical to the proximate cause element in common law tort

claims, the Court continues to fail to recognize that proof of proximate causation has

always included distinct component requirements for proof of causation-in-fact and, where

at issue, reasonable foreseeability of harm, and that, in 1996, we discarded and replaced

the archaic, often-conflated, and nebulous concept of “proximate cause” with a more

refined formulation that carries forward those essential component requirements in more

definite and simplified forms.2 The Court’s analysis similarly fails to recognize and

correctly apply the related but distinct requirement in consequential taking and damaging

claims, first recognized in 1897, for proof that the consequential damage to private property

be of a type or extent uncommon to the deleterious effect to which the subject public use

or improvement commonly subjects or affects the public or community at large.

Compounding our ongoing lack of analytical clarity and attention to detail, our post-Rauser

inverse condemnation cases have, without analysis or basis in Montana law, further

2 I thus concur with the Court’s Opinion, ¶¶ 9-12, that the California formulation of the causation element of a consequential damaging inverse condemnation claim in City of Oroville v. Superior Ct., 446 P.3d 304, 310-11 (Cal. 2019), is of no interpretive guidance under Article II, Section 29 to the extent that it is California’s latest attempt to settle the nagging confusion and “paradox” resulting from its prior inconsistent formulation of the essential elements of a consequential damaging claim, particularly its continuing struggle with reconciliation and application of reasonable foreseeability of harm as an included consideration in the common law concept of “proximate cause.” See Opinion, ¶¶ 11-12 (noting “paradox[ical]” California consequential damaging inverse condemnation formulation irreconcilably equating absence of foreseeable harm with satisfaction of “proximate cause”).

26 anomalously inserted and perpetuated the manifestly superfluous “as deliberately planned

and built” language, cursorily derived from California’s paradoxical public-policy-based

consequential damaging formulation,3 into the stated essential elements of Montana

consequential damaging inverse condemnation claims. These and various other related

analytical errors today result in a scattershot analysis under which the Court strains to deny

the Wittmans just compensation for clearly foreseeable consequential private property

damage caused by a public improvement without any contributing fault attributable to

them.

1. Application of Article II, Section 29 to Eminent Domain by Condemnation and Inverse Condemnation.

¶34 Like the Fifth Amendment takings protection, the Montana constitutional protection

against the uncompensated taking or damaging of private property comes to bear in two

distinct but related ways. It first imposes a constitutional limitation on the exercise of the

inherent government power of eminent domain to affirmatively acquire private property

for public use through the prescribed statutory process for formal condemnation, valuation,

and advance compensation.4 See Buhmann v. State, 2008 MT 465, ¶ 69, 348 Mont. 205,

3 Despite correct rejection of the Oroville causation formulation, however, the Court still fails to recognize and correct our own anomalous conflation, without analysis, of the reasonable foreseeability of harm requirement with the “as deliberately planned and built” language lifted out- of-context from California’s paradoxical public-policy-based consequential damaging causation formulation. See Knight v. City of Missoula (Knight-Missoula), 252 Mont. 232, 243, 827 P.2d 1270, 1276 (1992) (citing Rauser); Rauser, 172 Mont. at 539, 565 P.2d at 638 (citing Albers v. Los Angeles Cty., 398 P.2d 129, 136 (Cal. 1965)); Opinion, ¶¶ 11-12 (noting “paradox[ical]” California consequential damaging inverse condemnation formulation irreconcilably equating absence of foreseeable harm with satisfaction of “proximate cause”). 4 See Title 70, chapter 30, parts 1-3, MCA.

27 201 P.3d 70 (Article II, Section 29 “obviously contemplates” a formal pre-taking

“condemnation” proceeding); Eby v. City of Lewistown, 55 Mont. 113, 122-23, 173

P. 1163, 1165 (1918) (constitutional requirement for prior compensation by judicial

proceeding is express condition precedent to taking or damaging property for public use).5

Second, like the Fifth Amendment takings protection, Article II, Section 29 is also a

self-executing fundamental right that implicitly provides an independent constitutional

“inverse condemnation” remedy for “just compensation” for private property taken or

damaged for or by “public use” without utilization of the formal statutory condemnation

process. Wohl v. City of Missoula, 2013 MT 46, ¶ 55, 369 Mont. 108, 300 P.3d 1119

(inverse condemnation is “inverse” because the action involves a claim asserted by the

private property owner rather than a statutory action initiated against the property owner

by the public condemnor); Adams v. Dep’t of Highways, 230 Mont. 393, 397, 753 P.2d

846, 848 (1988).6

5 In the case of the state, and its various political subdivisions and other entities authorized by statute to condemn private property for a beneficial public use, eminent domain is the authority, inherent in state sovereignty and similarly derivative police power to legislate in furtherance of the general public health, safety, and welfare, to affirmatively appropriate private property for public use as provided by statute, subject to judicial determination of public need. Lake v. Lake Cty., 233 Mont. 126, 130, 759 P.2d 161, 163 (1988); State v. Aitchison, 96 Mont. 335, 341, 30 P.2d 805, 807-08 (1934); Butte, Anaconda & Pacific Ry. v. Mont. Union Ry. Co., 16 Mont. 504, 536, 41 P. 232, 243 (1895). 6 Accord Goebel v. City of Santa Barbara, 111 Cal. Rptr. 2d 901, 908 (Cal. Ct. App. 2001); Customer Co. v. City of Sacramento, 895 P.2d 900, 905 (Cal. 1995) (“inverse condemnation” involves improper taking or damaging of private property without formal condemnation, thereby effectively circumventing the constitutional requirement for just compensation paid in advance); Breidert v. S. Pac. Co., 394 P.2d 719, 721 n.1 (Cal. 1964) (constitutional “principles which affect the parties’ rights” regarding an alleged inverse condemnation “are the same as those in an eminent domain action” – internal citations omitted); United States v. Clarke, 445 U.S. 253, 256-57, 100 28 2. Limited and Coextensive Scope of Federal and State Takings Protection.

¶35 Based on their identical language, the takings protection afforded by Article II,

Section 29 is “coextensive with” that provided by the Fifth Amendment. Buhmann,

¶¶ 63-64. We thus generally interpret and apply the Article II, Section 29 takings protection

in accordance with Fifth Amendment jurisprudence. Buhmann, ¶¶ 63-64. While the

doctrinal distinction remains somewhat blurred,7 the Fifth Amendment and Article II,

S. Ct. 1127, 1129 (distinguishing inverse condemnation from affirmative condemnation per statute). 7 The doctrinal attributes of Fifth Amendment and Montana constitutional takings claims are often confusing, muddled, and or incomplete. See Kafka, ¶¶ 148-56 (Nelson, J., dissenting – noting continued conflation of constitutional takings and substantive due process principles); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539, 125 S. Ct. 2074, 2082 (2005) (acknowledging that Fifth Amendment regulatory takings jurisprudence “cannot be characterized as unified”); Nollan v. California Coastal Comm’n, 483 U.S. 825, 866, 107 S. Ct. 3141, 3164 (1987) (Stevens, J., dissenting – noting “the necessarily vague standards” in Fifth Amendment takings law and that “[e]ven the wisest lawyers would have to acknowledge great uncertainty about the scope” of federal takings jurisprudence); John L. Horwich & H. L. Lund, Montana Supreme Court Unnecessarily Misconstrues Takings Law, 55 Mont. L. Rev. 455, 466 (1994) (noting that this Court “is not alone in struggling with takings jurisprudence” and that it “remains complex and confusing”); Bradley C. Karkkainen, The Police Power Revisited: Phantom Incorporation and the Roots of the Takings “Muddle,” 90 Minn. L. Rev. 826, 827-38 and 847-50 (2006) (describing Fifth Amendment regulatory taking jurisprudence as a “doctrinal muddle” lacking “theoretical coherence”); Kris W. Kobach, The Origins of Regulatory Takings: Setting the Record Straight, 1996 Utah L. Rev. 1211, 1212-34 (1996) (noting doctrinal history and peculiarities of compensable categorical and regulatory takings analysis including consequential damaging of property rising to the level of a categorical taking); John D. Echeverria & Sharon Dennis, The Takings Issue and the Due Process Clause: A Way Out of a Doctrinal Confusion, 17 Vt. L. Rev. 695, 695-720 (1993) (describing constitutional takings jurisprudence as “a confused body of law containing contradictory principles and standards” and noting still pervasive historical conflation of the Fifth Amendment Takings Clause and the Fifth and Fourteenth Amendments due process clauses); Carol M. Rose, Mahon Reconstructed: Why the Takings Issue Is Still A Muddle, 57 S. Cal. L. Rev. 561 (1984); Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 Colum. L. Rev. 1630 (1988); Joseph L. Sax, Takings and the Police Power, 74 Yale L.J. 36, 37 (1964) (characterizing Fifth Amendment regulatory takings analysis as “a welter of confusing and apparently incompatible results” and a doctrinally “crazy-quilt pattern” of jurisprudence).

29 Section 29 generally apply to two types of takings—categorical takings and regulatory

takings. A categorical taking (i.e., a physical taking) generally occurs when a government

entity, or other statutorily authorized condemnor: (1) takes or asserts direct physical

possession or dominion over a cognizable aspect of private property; (2) otherwise

physically ousts or denies the owner of possession, use, or enjoyment of private property;

or (3) engages in or authorizes a local public land use activity that causes some form of

consequential physical invasion or intrusion of or upon private property that damages the

property, or interferes with the owner’s property rights, to such an extent to be tantamount

to an actual physical “appropriation” of the property or “ouster” of the owner from the

property. See Kafka v. Mont. Dep’t of Fish, Wildlife & Parks, 2008 MT 460, ¶ 68, 348

Mont. 80, 201 P.3d 8; Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,

535 U.S. 302, 321-25, 122 S. Ct. 1465, 1478-80 (2002) (internal citations omitted); Lucas

v. S.C. Coastal Council, 505 U.S. 1003, 1014, 112 S. Ct. 2886, 2892-93 (1992) (internal

citations omitted); Sanguinetti v. United States, 264 U.S. 146, 149, 44 S. Ct. 264, 265

(1924). See also Cottonwood Envtl. Law Ctr. v. Knudsen, 2022 MT 49, ¶ 19, 408 Mont.

57, 505 P.3d 837; Less, 28 Mont. at 32, 72 P. at 141. In contrast, a regulatory taking occurs

when government regulations either “completely deprive an owner of all economically

beneficial use” of the property or, based on ad hoc consideration of a complex of “factors”

as applied to the particular circumstances of each case, otherwise impedes exercise of the

owner’s property rights to such an extent to be tantamount to a physical taking of all or

part of the property. Kafka, ¶¶ 67-78, (internal citations omitted); Murr v. Wisconsin, __

30 U.S. __, __, 137 S. Ct. 1933, 1942-48 (2017) (internal punctuation and citations omitted);

Tahoe-Sierra, 535 U.S. at 321-25, 122 S. Ct. at 1478-80 (distinguishing categorical and

regulatory takings).8

3. Broader Article II, Section 29 Protection Against Uncompensated Damaging of Private Property for Public Use.

¶36 At common law, absent some form of consequential physical invasion caused by a

nearby public improvement that was of such magnitude to be tantamount to a categorical

taking of all or a portion of the property, the only private remedies available for lesser

consequential property damage or interference caused by public improvements or uses

were common law remedies such as negligence, nuisance, or trespass, as applicable. See

Less, 28 Mont. at 31, 72 P. at 141; Reardon v. San Francisco, 6 P. 317, 322-24 (Cal. 1885);

Radcliff’s Ex’rs v. City of Brooklyn, 4 N.Y. 195, 206 (N.Y. 1850); Callender v. Marsh, 18

Mass. 418, 430 (Mass. 1823); Restatement (Second) of Torts § 158 (Am. Law Inst. 1965)

(in re trespass upon land). To augment the limited common law and constitutional takings

remedies, many state constitutions, like our 1889 and 1972 constitutions, included taken

or damaged language to more broadly provide a constitutional remedy for the direct or

indirect non-taking consequential damaging of private property caused by the construction

or operation of public improvements or works. See Less, 28 Mont. at 31-32, 72 P. at 141

(1889 Montana Constitution Article III, Section 14 “or damaged” provision displaced

8 See also Cottonwood, ¶ 19; Richards v. Cty. of Missoula, 2012 MT 236, ¶¶ 5-11 and 34-35, 366 Mont. 416, 288 P.3d 175; Seven Up Pete Venture v. State, 2005 MT 146, ¶¶ 14 and 20-37, 327 Mont. 306, 114 P.3d 1009; Kudloff v. City of Billings, 260 Mont. 371, 375-77, 860 P.2d 140, 142-44 (1993).

31 “harsh” common law “damnum absque injuria” rule precluding non-tort-based property

damage claims against municipalities for consequential damage caused by subsequent

improvement of public streets); Reardon, 6 P. at 320-26 (construing identical “or damaged”

provision of 1879 California Constitution).9 As aptly recognized by the California

Supreme Court in 1885, the “or damaged” provision of the California Constitution:

refers to something more than a direct or immediate damage to private property, such as its invasion or spoliation . . . [and] should be construed in . . . its ordinary and popular sense. It embraces more than the taking. . . . [As recognized regarding] a like provision in the [Georgia] Constitution, . . . [a]ny damage to property for public use must receive its compensation. It . . . will no doubt often occur, that the consequential damage may impose a more serious loss upon the owner than a temporary spoliation or invasion of the property.

[Such state constitutional provisions more broadly apply to] damages . . . [that are] consequential . . . [whether] the exercise of public use . . . [was] done with care and skill or not.

9 The constitutions of at least twenty-one other States similarly provide broader protections against the taking or damaging of private property for public use without just compensation. See, e.g., Alaska Const. art. I, § 18; Ariz. Const. art. II, § 17; Ark. Const. art. II, § 22; Colo. Const. art. II, § 15; Ga. Const. art. I., § 3, par. I(a); Haw. Const. art. I, § 20; Ill. Const. art. I, § 15; La. Const. art. I, § 4(B)(1); Minn. Const. art. I, § 13; Miss. Const. art. III, § 17; Mo. Const. art. I, § 26; Neb. Const. art. I, § 21; N.M. Const. art. II, § 20; Okla. Const. art. II, § 24; S.D. Const. art. VI, § 13; Tex. Const. art. I, § 17; Utah Const. art. 1, § 22; Va. Const. art. I, § 11; Wash. Const. art. I, § 16; W. Va. Const. art. III, § 9; Wyo. Const. art I, § 33. See also Kafka, ¶ 30 n.5 (noting that the broader language of Article II, Section 29 “is not unique among state constitutions” and that “[r]oughly half” of the other state constitutions include similarly broad language – citing Julius L. Sackman, 2A Nichols on Eminent Domain § 6.01[12][c], 6-29 (3d ed., Matthew Bender 2008)). We have thus recognized that other States’ interpretations of similar constitutional “or damaged” provisions may be pertinent guiding authority in construing the “or damaged” protection provided by Article II, Section 29. See Buhmann, ¶ 68 (citing Customer Co., 895 P.2d at 904-16 (holding that similar California “or damaged” protection narrowly applies to consequential damages incident to government exercise of eminent domain power by formal condemnation and those incident to construction or operation of public improvements to land and is thus not applicable to claims for damages caused by government officers in the enforcement of the criminal law)); Rauser, 172 Mont. at 538-39, 565 P.2d at 638 (citing California authority); Less, 28 Mont. at 32; 72 P. at 141 (citing California and Georgia authority).

32 [T]he right . . . is not restricted to . . . where [the claimant] is entitled to recover [in] tort at common law. . . . [It applies to private property] consequently damaged by the work done, whether it is done carefully and with skill or not. . . . [It] was intended to assure compensation . . . where the damage is directly inflicted . . . [or involves] consequential [damage] . . . for which . . . [there was no] common law [remedy].

[T]he word “damaged” . . . [was] intended to give a remedy, as well [as] where one existed before . . . [and] to superadd to the [takings protection] . . . a guaranty against damage where none previously existed.

. . .

[Where] the damage is to the houses affixed to the land[,] [t]his is special damage to the plaintiffs, for which they are entitled to recover, though the[] [damage] may be . . . consequential.

Reardon, 6 P. at 322-26 (emphasis added – internal punctuation and citations omitted).

The broader constitutional “or damaged” protection was:

added to clarify that the government was obligated to pay just compensation for property damaged in connection with the construction of public improvements, even if [it] had not physically invaded the damaged property.

[T]he addition of the . . . “or damaged” . . . [protection] is not limited to physical invasions of property taken for “public use” in eminent domain, but also encompasses special and direct damage to adjacent property resulting from the construction of public improvements.

Customer Co. v. City of Sacramento, 895 P.2d 900, 906-07 (Cal. 1995) (emphasis added).

Accordingly, in contrast to the narrower takings protection, the Article II, Section 29 or

damaged provision more broadly requires just compensation for any direct or

consequential property damage or interference caused to private property by a public

improvement or land use, regardless of whether the owner was not deprived of all

33 beneficial use of the property or that the damage was repairable or temporary in nature.

Less, 28 Mont. at 31-32, 72 P. at 141 (citing City of Atlanta v. Green, 67 Ga. 386, 388-89

(Ga. 1881), inter alia); Root v. Butte, Anaconda, & Pac. Ry. Co., 20 Mont. 354, 358, 51

P. 155, 156 (1897); Customer Co., 895 P.2d at 906-07 (citing Reardon, 6 P. at 322-26, and

2 & 2A Nichols on Eminent Domain §§ 6.22-6.26, pp. 6-157 to 6-190 (reviewing origin of

“or damaged” clauses in various state constitutional provisions)); Reardon, 6 P. at 322-26

(citing Green); Green, 67 Ga. at 388-89 (state constitutional protection for private property

“taken or damaged for public use” broadly requires compensation for “any direct and

immediate damage done to private property, such as its invasion or spoliation,” as well as

any other “consequential” damage caused by a public use or improvement – emphasis

original – quoted in Less). Article II, Section 29 thus generally encompasses three distinct

34 species of inverse condemnation claims—categorical takings claims,10 regulatory takings

claims,11 and consequential damaging claims.12

10 See, e.g., Cottonwood, ¶ 19; Kafka, ¶ 68 (distinguishing between categorical takings and regulatory takings); Knight-Missoula, 252 Mont. at 240, 827 P.2d at 1275 (analyzing claim as a consequential takings claim to extent based on the claimed public road interference with private property due to traffic, dust, and exhaust); Rauser, 172 Mont. at 533-34, 536-37, and 543, 565 P.2d at 635-37 and 640 (expressly characterizing the consequential deleterious effect of the public improvement as a “taking” and the property as having been “taken”); Sanguinetti, 264 U.S. at 149, 44 S. Ct. at 265 (distinguishing claim based on permanent consequential physical invasion of private property tantamount to a government appropriation from mere “consequential injury”). See also Tahoe-Sierra, 535 U.S. at 321-25, 122 S. Ct. at 1478-80 (distinguishing categorical takings from regulatory takings); Lucas, 505 U.S. at 1014, 112 S. Ct. at 2892-93 (distinguishing physical takings from regulatory takings); Kris W. Kobach, The Origins of Regulatory Takings: Setting the Record Straight, 1996 Utah L. Rev. 1211, 1212-34 (1996) (noting doctrinal history and peculiarities of compensable categorical and regulatory takings analysis including consequential damaging of property rising to the level of a categorical taking). 11 See, e.g., Cottonwood, ¶ 19; Helena Sand & Gravel, Inc. v. Lewis & Clark Cty. Planning & Zoning Comm’n, 2012 MT 272, ¶¶ 43-48, 367 Mont. 130, 290 P.3d 691 (remanding for regulatory takings analysis); Richards, ¶¶ 5-11 and 34-35 (alleged regulatory taking based on county denial of subdivision approval); Kafka, ¶¶ 67-79 (applying Fifth Amendment regulatory takings analysis); Seven Up Pete, ¶¶ 14 and 20-37 (alleged regulatory taking based on state law prohibition of cyanide heap leaching method of open-pit gold and silver mining); Kudloff, 260 Mont. at 375-77, 860 P.2d at 142-44 (alleged regulatory taking based on involuntary city annexation of private property); Knight-Missoula, 252 Mont. at 240, 827 P.2d at 1275 (analyzing asserted claim as regulatory takings to extent based on city refusal to close public road); Knight v. City of Billings (Knight-Billings), 197 Mont. 165, 168-74, 642 P.2d 141, 142-46 (1982) (regulatory taking claim based on city refusal to rezone restrictive residential area along urban street/commercial area for higher intensity zone – holding that no physical taking occurred but city refusal to rezone “impose[d] a servitude” limiting “the use and marketability” of the subject private properties sufficient to constitute a taking); Murr, __ U.S. at __, 137 S. Ct. at 1942-48; Tahoe-Sierra, 535 U.S. at 321-25, 122 S. Ct. at 1478-80; Lucas, 505 U.S. at 1014, 112 S. Ct. at 2892-93. 12 See, e.g., Deschner v. Mont. Dep’t of Highways, 2017 MT 37, ¶¶ 3-7, 12-14, and 21-22, 386 Mont. 342, 390 P.3d 152 (alternative non-taking consequential damaging claim based on falling rock damage to home allegedly caused by nearby highway improvement/drainage work); Adams, 230 Mont. at 394-95, 398, and 404, 753 P.2d at 846-48 and 852-53 (asserted non-taking consequential damaging claim based on interference with use and enjoyment of home caused by expansion of nearby rural street to urban arterial – internal citations omitted); Root, 20 Mont. at 356-60, 51 P. at 155-57 (non-taking consequential damaging claim based on interference with use and enjoyment of home caused by operation of railroad in adjoining street); Less, 28 Mont. at 31-34, 72 P. at 141-42 (non-taking consequential damaging claim based on interference with use of home caused by a significant street and sidewalk grade change in front of home). 35 4. Essential Elements of Non-Taking Consequential Damaging Inverse Condemnation Claims.

¶37 The first question regarding an Article II, Section 29 inverse condemnation claim is

a threshold question of law for court determination as to whether the claimed taking or

damaging involves a legally cognizable property interest—a “compensable property

interest”—independently established or recognized under some other source of state or

federal law. Kafka, ¶¶ 32-33 (internal citations omitted); Members of the Peanut Quota

Holders Ass’n, Inc. v. United States, 421 F.3d 1323, 1330 (Fed. Cir. 2005). Accord Malpeli

v. State, 2012 MT 181, ¶¶ 14-15, 366 Mont. 69, 285 P.3d 509 (internal citations omitted).

See also Billings Yellow Cab, LLC v. Mont. Pub. Serv. Comm’n, 2014 MT 275, ¶ 15, 376

Mont. 463, 335 P.3d 1223; Pub. Lands Access Ass’n v. Madison Cty. Comm’rs, 2014 MT

10, ¶¶ 61-73, 373 Mont. 277, 321 P.3d 38.13 The pertinent focus is whether the asserted

property interest has the characteristics of property such as, inter alia, rights of possession,

use, exclusion of others, control, transfer, and disposition. Malpeli, ¶¶ 15 and 24 (internal

citations omitted). If so, the claim must then proceed to determination and application of

the pertinent facts to the remaining essential elements of the claim. See Buhmann, ¶¶ 58-59

(distinguishing respective provinces of court and fact-finder); Kafka, ¶¶ 32 and 69; Knight

v. City of Missoula (Knight-Missoula), 252 Mont. 232, 240-42, 827 P.2d 1270, 1275-76

(1992). While we have yet to carefully and consistently identify and define them in a

13 If this threshold question turns on a genuine issue of material fact, the predicate fact question must be determined by the applicable finder of fact. See Buhmann, ¶¶ 56-59.

36 uniform manner, a summary step-through of our pertinent precedent clearly manifests the

essential elements of an Article II, Section 29 damaging claim in contrast to the Court’s

strained formulation here and the distinct elements of categorical consequential taking

claims.

A. Early Montana Non-Taking Consequential Damaging Cases: Root and Less.

¶38 Interestingly, the term “inverse condemnation” apparently did not appear in our

jurisprudential vernacular until the 1960s. See Robertson v. State Highway Comm’n, 148

Mont. 275, 282, 420 P.2d 21, 24 (1966); State ex rel. State Highway Comm’n v. Mont.

Fourth Jud. Dist. Ct., 142 Mont. 198, 200, 383 P.2d 481, 482 (1963); Bakken v. State, 142

Mont. 166, 167, 382 P.2d 550, 551 (1963). We nonetheless first recognized the essence of

the claim as early as 1897. In Root, we considered a Butte homeowner’s non-taking

consequential damaging claim against a railroad under the “or damaged” provision of

Article III, Section 14 of our 1889 Constitution. See Root, 20 Mont. at 356-58, 51 P. at

155-56. The homeowner alleged that the “the construction and operation” of a railroad in

the platted city street in front of his home, and attendant deleterious effects (i.e., “blowing

of whistles, ringing of bells, noises from engines and trains,” chaff and smoke emissions,

ground vibration, noise, and loss of prior access to adjoining or adjacent streets),

substantially interfered with the use and enjoyment of his property, resulting in diminution

of his property value. Root, 20 Mont. at 356-58, 51 P. at 155-56. In reference to the

pre-Rules precursor to M. R. Civ. P. 9(g) (special damages pleading requirement), we noted

that the homeowner pled only general damages (those that “naturally and necessarily result

37 from” the subject act or condition) and that the alleged deleterious effects of the railroad

operation were thus not compensable as the “natural and necessary result of” a “well

constructed and skillfully operated” railroad, “46 feet distant from” his home, “to any

greater extent” than any similar “injur[y] [to] the general public.” Root, 20 Mont. at

356-57, 51 P. at 155-56 (emphasis added). We held further, however, that, upon proper

pleading of special damages (those “which are the natural[] but not the necessary[]

consequence” of the subject conduct or circumstance), such damages as “specially

sustained by reason of the [subject] public improvement” and “which are not common to

the public at large” were constitutionally compensable under the Article III, Section 14 “or

damaged” provision. Root, 20 Mont. at 357-60, 51 P. at 155-57 (emphasis added). We

thus reversed the trial court dismissal of the claim with remand for a new trial. Root, 20

Mont. at 360, 51 P. at 157.

¶39 Six years later, in Less, we considered whether the district court erroneously denied

the City of Butte’s pre-Rules motion for “nonsuit” of a homeowner’s claim for non-taking

consequential property damage or interference caused by a significant street and sidewalk

grade change in front of his home. Less, 28 Mont. at 31-33, 72 P. at 141 (preliminary

statement of facts not paginated). We held that the district court properly rejected the City’s

assertion that the prior dedication and initial grading of the public street precluded the

homeowner’s claim because the constitutional “or damaged” provision “abrogated” the

“harsh” common law “damnum absque injuria” rule precluding non-negligence-based

homeowner claims against government entities for property damages caused by subsequent

38 improvement of previously dedicated townsite streets. Less, 28 Mont. at 31-34, 72 P. at

141-42. We thus affirmed, holding that the claimed “consequential” property damage or

interference caused by the subject street and sidewalk improvements was constitutionally

compensable under the Article III, Section 14 “or damaged” provision. Less, 28 Mont. at

31-34, 72 P. at 141-42 (emphasis added). Root and Less thus clearly recognized that the

essential elements of proof of a consequential damaging inverse condemnation claim are:

(1) substantial private property damage or interference; (2) caused as a natural result,

regardless of whether a necessary result, of the building or operation of a public

improvement or use of property; and (3) the subject property damage or interference is of

a type or extent uncommon to the deleterious effect to which the improvement at issue

commonly subjects the public or community at large. See Less, 28 Mont. at 31-34, 72 P.

at 141-42; Root, 20 Mont. at 356-60, 51 P. at 155-57.14

B. Rauser and Our Subsequent Over-Reading of Rauser in re “As Deliberately Planned and Built” and Foreseeability/Proximate Cause Elements of Inverse Condemnation Claims.

¶40 Jumping forward to 1977, Rauser involved an Article II, Section 29 consequential

takings claim against the Toston Irrigation District15 for compensation for permanently

14 See also, e.g., Wright v. City of Butte, 64 Mont. 362, 210 P. 78 (1922) (compensation for non-taking consequential cost of new access steps, retaining wall, damaged lot trees and shrubbery, and service pipe relocation necessitated by adjacent street grade decrease); Eby, 55 Mont. at 125-29, 173 P. at 1166-67 (compensation for non-taking consequential cost of raising lot grade, building, and appurtenances to adjacent street grade increase). 15 The 1955 Toston Irrigation Project in Broadwater County “consist[ed] of the Crow Creek pump unit and a water delivery system built as a part of the Missouri River Basin Project.” Rauser, 172 Mont. at 533, 565 P.2d at 635. The irrigated land within the District “was to serve as a replacement for lands flooded by Canyon Ferry Reservoir” and, as of 1977, “cover[ed] nearly five thousand 39 recurring interference with adjoining private property, in the form of underground water

migration, saturation, and surface flooding, caused by increased irrigation in the adjoining

Irrigation District. Rauser, 172 Mont. at 533-37 and 543, 565 P.2d at 635-37 and 640

(expressly characterizing the consequential deleterious effect of the subject public

improvement as a “taking” and the property as having been “taken”). Somewhat similar

to the City’s defense in this case, however, the Irrigation District asserted that the cause of

the flooding was not the contemplated irrigation increase in the adjoining District, but

rather, the adjacent property owners’ “enlargement of [their] own irrigation ditch” which

the District asserted “created a barrier to the natural drainage of the land.” Rauser, 172

Mont. at 534, 565 P.2d at 635. As a preliminary matter, we recognized that a consequential

“taking” can occur “without a total physical appropriation” of the property or any tortious

conduct in the construction or operation of the subject public improvement. Rauser, 172

Mont. at 536-37, 565 P.2d at 636-37 (citing Fifth Amendment takings jurisprudence). We

then cited Less, a consequential damaging case, for the similarly applicable proposition

that the taking or damaging provision of Article II, Section 29 does not require proof that

the government “physical[ly] inva[ded]” private property, only that the public

improvement caused “consequential damage” to the property. Rauser, 172 Mont. at 537,

acres.” Rauser, 172 Mont. at 533, 565 P.2d at 635. Pursuant to § 89-1301(3), RCM (1947), the statutory Irrigation District affirmatively condemned the subject district lands upon which the federal government then “built and own[ed] the physical assets of the irrigation system” for administration by the District. Rauser, 172 Mont. at 534-35, 565 P.2d at 635-36.

40 565 P.2d at 637 (emphasis added). Applying those essential elements of proof to the

particular facts at issue, we held that:

[T]he [off-site] damage done by the [irrigation] project was foreseeable and foreseen. It was inevitable that Rausers’ land would be damaged by the construction of the project. . . . Where, as here, the damages are known or knowable and are an inevitable result of the intentional undertaking of the project, there is no need to show [any] negligen[ce]. . . . It is enough to show the damages were proximately caused by the undertaking of the project and a reasonabl[y] foreseeable consequence [thereof]. It is implicit in inverse condemnation that the extent of the damage be of such a degree as to amount to a taking of an interest in the property damaged.

Rauser, 172 Mont. at 538, 565 P.2d at 637 (generally citing Albers v. Los Angeles Cty.,

398 P.2d 129 (Cal. 1965) – emphasis added)).

¶41 Upon careful reading, Rauser held no more than that the factual “inevitab[ility]”

and actually “foreseen” nature of the harm at issue, as the factual proof in that case, was

more than sufficient to satisfy the minimum causation element requirement that the

claimed “damages [be] proximately caused by the undertaking of the project and a

reasonabl[y] foreseeable consequence” thereof. Rauser, 172 Mont. at 538, 565 P.2d at 637

(emphasis added). Unfortunately, our analysis was not the model of clarity in two

significant regards. First, we redundantly referred to proximate cause and reasonable

foreseeability as distinct causation requirements. Second, without clear analytical

transition from the holding that we had just made (i.e., that the subject harm was a

reasonably foreseeable consequence of increased irrigation in the Irrigation District), we

noted that, in particular regard to “irrigation project[s],” “it appears inevitable . . . that

certain unplanned for problems arise that damage adjacent property owners,” in “many

41 instances” without “negligence or other wrongful conduct or omission,” and often result in

alternative tort and inverse condemnation claims. Rauser, 172 Mont. at 538, 565 P.2d at

637. We then generally referenced Albers as “[o]utstanding in the cases of [that] type”

(i.e., cases including alternative tort and inverse condemnation claims), and then quoted

and “adopted,” as interpretive “guides” “applicable to” the particular circumstances at issue

in Rauser, five public policy considerations enunciated by the California Supreme Court

for balanced threshold ad hoc consideration in each case, regardless of proof of a sequential

chain of causation-in-fact between the public improvement and subject harm at issue. See

Rauser, 172 Mont. at 538-39, 565 P.2d at 637-38 (quoting from Albers, 398 P.2d at

136-37).16 Strangely, however, we then stopped short and did not apply those ad hoc public

policy considerations to the facts at issue in Rauser. See Rauser, 172 Mont. at 538-39, 565

P.2d at 637-38. But, as will be evident from the detailed analysis of the component

requirements of proximate cause that follows below, our seemingly non-sequitur hanging

16 Unlike the consequential takings claim at issue in Rauser, at issue in Albers was a non-taking consequential damaging claim. Albers, 398 P.2d at 131-38 (consequential land-shifting under nearby private properties caused-in-fact by construction of a public roadway in the vicinity of an unstable land formation). The California Court enunciated the so-called Albers factors as interpretive public policy considerations pertinent in assessing whether the proximate cause element of the claim required that the subject harm be reasonably foreseeable, aside from satisfaction of cause-in-fact, where the government neither intentionally nor negligently caused the subject harm. Albers, 398 P.2d at 136-37. Based on ad hoc application of those policy considerations to the circumstances at issue, the Court essentially held that proximate cause did not require that the type of property damage at issue be reasonably foreseeable under the particular circumstances of that case. Albers, 398 P.2d at 137. The California Court later recognized the paradoxical nature of that conclusion given that foreseeability of harm was an included consideration in the concept of common law proximate cause. See Belair v. Riverside Cty. Flood Control Dist., 764 P.2d 1070, 1074-75 (Cal. 1988) (internal citation omitted)); Holtz v. Superior Ct. of San Francisco, 475 P.2d 441, 445 n.9 (Cal. 1970) (citing Van Alstyne, Inverse Condemnation: Unintended Physical Damage, 20 Hastings L.J. 431, 435-38 (1969)).

42 reference in Rauser to the threshold California ad hoc public policy considerations clearly

pertained not to the essential elements of proof of an inverse condemnation claim, but to

foreseeability of harm to the extent that it may implicate ad hoc public policy

considerations as an included consideration of proximate cause in a particular case. See

Busta v. Columbus Hosp. Corp., 276 Mont. 342, 360-73, 916 P.2d 122, 133-40 (1996)

(discussing “tortuous history” of the “law of foreseeability” of harm under Montana law

and, inter alia, clarifying the role of foreseeability of harm in the causation context as a

component consideration of proximate cause as applicable in a particular case).

Consequently, despite our lack of analytical clarity, nothing in Rauser evinced any intent

to “adopt” or apply any of the so-called Albers public policy considerations as essential

elements of proof for inverse condemnation claims.

¶42 Nonetheless, though inconsequential in the narrow context of the particular facts at

issue there, our lack of analytical clarity in Rauser would soon become the seed of what

would later become one of the sources of the Court’s flawed causation analysis here. One

of the five California ad hoc policy considerations quoted in Rauser was the question of

whether “the property owners . . . suffer[ed] direct physical [property] damage . . . as the

proximate result of the works as deliberately planned and carried out.” Rauser, 172 Mont.

at 539, 565 P.2d at 638 (quoting Albers, 398 P.2d at 136-37 – emphasis added). Despite

the manifest lack of any intent in Rauser to adopt and apply any of the California ad hoc

public policy considerations as substantive elements of proof in Montana inverse

condemnation claims, we later, by general citation to Rauser without analysis, cursorily

43 grafted onto the proximate cause element of such claims the additional language that the

alleged physical property damage or interference be proximately caused by the public

improvement as deliberately planned and built. See Knight-Missoula, 252 Mont. at 243,

827 P.2d at 1276 (citing Rauser); Deschner v. Mont. Dep’t of Highways, 2017 MT 37,

¶¶ 17 and 22, 386 Mont. 342, 390 P.3d 152 (citing Knight-Missoula and Rauser); Brishka

v. Mont. Dep’t of Transp., 2021 MT 129, ¶ 13, 404 Mont. 228, 487 P.3d 771 (citing

Deschner); Opinion, ¶¶ 17-18 and 25 (internal citations omitted).

¶43 Regardless of our imprecise analysis, however, the narrow pertinent legal issue in

Rauser was, in essence, whether the causation element of an inverse condemnation claim

included a reasonable foreseeability of harm requirement in addition to proof of sequential

causation-in-fact. See Rauser, 172 Mont. at 536-39, 565 P.2d at 636-38. Consistent with

the common law proximate cause standard applicable in negligence claims since 1895 to

this day, see § 27-1-317, MCA (enacted Mont. Civ. Code § 4330 (1895)), our manifestly

implicit application of that causation standard in Root (holding that uncommon special

damages, i.e., the natural but not necessary consequence “sustained by reason of the public

improvement” are compensable under Montana constitutional “or damaged” provision),

and our similar holding in Less, we answered in the affirmative by stating that the causation

element in inverse condemnation claims requires proof of “proximate cause,” and thus by

implication, proof of its two component considerations—causation-in-fact and, as

applicable in a particular case, reasonable foreseeability of harm. See Rauser, 172 Mont.

at 538-39, 565 P.2d at 638-39; compare Less, 28 Mont. at 31-34, 72 P. at 141-42; Root, 20

44 Mont. at 356-60, 51 P. at 155-57. Rauser went no further, and thus did and does not support

our later cursory, anomalous insertion of the superfluous “deliberately planned and built”

language, lifted in isolation from a quoted California public policy consideration without

any basis in Montana law, into the proximate cause element of proof for Montana inverse

condemnation claims.

¶44 Further emphasizing the point, our repeated overreading of Rauser as the source of

the anomalous “as deliberately planned and built” touted by the Court today as a limitation

on the proximate cause element of a Montana consequential damaging inverse

condemnation claim, Opinion, ¶¶ 17-18 and 25, irreconcilably conflicts with our

consistently repeated recognition that “the analysis of proximate cause” in the inverse

condemnation context is identical to, i.e., the same or coextensive with, the common law

standard of proximate cause in tort claims. Brishka, ¶ 15; Thelen v. City of Billings, 238

Mont. 82, 85-86, 776 P.2d 520, 522-23 (1989) (citing Rauser). Accord Opinion, ¶ 12

(quoting Brishka, ¶ 15); Deschner, ¶¶ 17-19 (citing Rauser and distinguishing Albers as

referenced in Rauser). We essentially recognized as much when we admonished five years

ago that “the test for” Montana inverse condemnation claims “must be” interpreted in

harmony with our prior Article II, Section 29 jurisprudence. Deschner, ¶¶ 12 and 17. We

thus further noted that: (1) we did not adopt any of the Albers public policy considerations

for use as anything other than interpretive “guides”; (2) we did not “actually apply” any of

them in Rauser; and (3) the Albers policy guides “should not be strictly applied as

elements” of proof to the extent “incommensurate with” our inverse condemnation

45 jurisprudence. Deschner, ¶¶ 16-17 and 21 (noting Rauser holding that inverse

condemnation claims do not require “a showing of” tortious conduct, that Rauser is more

“noteworthy for establishing what is not required” for inverse condemnation claims “than

what is required,” and that the Albers-based jury instruction regarding the essential

elements of proof of a consequential damaging inverse condemnation claim was an

incorrect statement of Montana law).17 I would therefore doctrinally limit

Knight-Missoula, Deschner, and Brishka accordingly, and hereafter exclude the anomalous

“deliberately planned and built” language from future statements of the essential elements

of proof for consequential takings or damaging inverse condemnation claims.18

C. Pertinent Post-Rauser Montana Inverse Condemnation Cases.

¶45 At issue in Knight v. City of Billings (Knight-Billings), 197 Mont. 165, 642 P.2d 141

(1982), was an inverse condemnation claim asserted against the City of Billings by owners

of homes in a residential neighborhood in the immediate vicinity of 24th Street West, a

former county road annexed into the City in 1959. Knight-Billings, 197 Mont. at 166, 642

P.2d at 141-42. The dispute arose after the City incrementally widened the original

two-lane street into a five-lane arterial between 1972-78 to accommodate the burgeoning

business sector in that area. Knight-Billings, 197 Mont. at 166-68, 642 P.2d at 141-42.

17 Nor have we since applied any of the Albers factors as essential elements of proof in an inverse condemnation case before today. 18 Such doctrinal clarification and limitation would not alter or undermine our ultimate holdings in any of those cases.

46 The roadway expansion substantially changed the conditions and environment in the

residential neighborhood to the extent that:

[t]here [was no longer] free access into driveways . . . [and are now] long waits in the fifth lane for passing traffic. Free access to and from the driveways is nearly impossible. There have been traffic accidents in front of the residential properties, and sometimes upon their properties. Children and pets are not safe in the front yards and pedestrian traffic along the sidewalks a few feet from passing vehicular traffic is dangerous. Average traffic flows at 22 miles per hour past their houses. Rocks and rubbish from passing traffic are thrown upon their lawns and into their houses. The sidewalks are constantly filthy, especially in winter. The noise from the passing traffic is so loud that front doors must be closed for conversation to be heard inside. Traffic noise is loud and aggravating at night. The houses cannot be ventilated from the east side because of dust and exhaust fumes. The houses and contents are constantly subject to vibrations. One of the residents testified that she had to tape her windows to avoid the bright light from the high intensity sodium vapor lighting that was installed. There appears to be general agreement that the houses are unsuitable for residential living.

Knight-Billings, 197 Mont. at 169, 642 P.2d at 143.

¶46 While we did not expressly characterize it as such, the claim at issue in

Knight-Billings was a regulatory taking claim, rather than a non-taking consequential

damaging claim, predicated on the City’s refusal to re-zone the area from a low-intensity

residential zone to a higher intensity zone that would allow the property owners to use or

sell their properties for specified commercial use consistent with the growing businesses

along 24th Street West. See Knight-Billings, 197 Mont. at 168-74, 642 P.2d at 142-46

(holding that no physical taking occurred but that the City’s refusal to rezone the subject

property “impose[d] a servitude, a limitation upon the use and marketability” of the subject

private properties, that “interfered with the [homeowners’] private property interests . . . so

as to constitute a ‘taking’” – emphasis added). Unlike in Rauser and here, the standard of

47 proximate causation for inverse condemnation claims was not at issue. See

Knight-Billings, 197 Mont. at 168-74, 642 P.2d at 142-46. Consequently, nothing in

Knight-Billings supports the Court’s assertion today, Opinion ¶¶ 17-18 and 25, of the

anomalous “as deliberately planned and built” language as an additional limitation on the

proximate cause element of a Montana consequential damaging inverse condemnation

claim.

¶47 Adams involved an inverse condemnation claim asserted against the state highway

department by adjacent landowners based on the deleterious effects (i.e., increased traffic,

noise, air pollution, and dust accumulation) caused by a bridge construction project in

conjunction with the expansion of a formerly rural street to an urban arterial (Reserve

Street) in Missoula. Adams, 230 Mont. at 394-95, 753 P.2d at 846-47. As in Root and

Less, and in contrast to Rauser and Knight-Billings, the claim at issue in Adams was a

consequential damaging claim rather than a categorical or regulatory taking claim. See

Adams, 230 Mont. at 395, 398, and 404, 753 P.2d at 847-48 and 852-53 (citing

Knight-Billings, Less, et al.). While not so clearly articulated, the focus on appeal was on

the uncommon damage and actual pecuniary loss elements of the consequential damaging

claim—the causation element of the claim was not at issue. See Adams, 230 Mont. at

398-405, 753 P.2d at 849-53 (noting that, unlike in Knight-Billings, the prevailing mixed

residential/commercial zoning was “sufficient to maintain” the subject property values and

thus did not effectively “singl[e] out [any] one group or individual,” the road expansion

“undoubtedly increased” the value of the properties for sale or “use[] in a commercial

48 fashion,” and that the landowners had “not shown that their situation is any different from

any other property owner who suffers the [e]ffects of living adjacent to a roadway with

increased traffic”). As pertinent here, Adams thus manifested our continued recognition

that the essential elements for consequential damaging claims distinctly require separate

proof that the claimed property damage or interference harm caused by the subject

improvement be uncommon to that experienced by other similarly situated properties and

owners in the community at large. Compare Root, 20 Mont. at 358-59, 51 P. at 156-57.

¶48 In pertinent part, Knight-Missoula involved an inverse condemnation claim asserted

against the City of Missoula and Missoula County by homeowners in a residential

subdivision in the Pattee Canyon area after the City denied their 1989 petition to close a

disputed roadway across a park that was platted in the original 1957 county subdivision.

Knight-Missoula, 252 Mont. at 236-40, 827 P.2d at 1272-75. The subdivision developer

apparently cut the roadway through the platted park for temporary access to facilitate initial

subdivision development prior to city annexation in 1958. Knight-Missoula, 252 Mont. at

236-40, 827 P.2d at 1272-75. While the property owners indiscriminately pled their

inverse condemnation claim as both a federal and Montana taking claim and a Montana

consequential damaging claim, we analyzed the claim as a consequential and/or regulatory

taking claim based on the claimed interference with private property rights (i.e., increased

traffic, dust, and exhaust) caused by the City’s refusal to close the road for public use.

Knight-Missoula, 252 Mont. at 240, 827 P.2d at 1275 (noting that “a question of fact”

49 remained as to whether “a taking” occurred – emphasis added).19 Upon reiteration of the

Rauser/Albers-based statement that an inverse condemnation claim requires proof that “a

public improvement as deliberately planned and built” “proximately caused” “actual

physical damage” to private property, we held that a question of fact remained on the

causation-in-fact component of the proximate cause and actual pecuniary loss elements of

the claim. Knight-Missoula, 252 Mont. at 243, 827 P.2d at 1276-77 (citing Rauser, 172

Mont. at 539, 565 P.2d at 638 – emphasis added). Knight-Missoula is thus pertinent here

only to the extent that it referenced the anomalous “as deliberately planned and built”

language lifted from the Albers public policy considerations in Rauser and, with

foreseeability of harm not at issue in that case, that we recognized causation-in-fact as an

included component in the proximate cause element of the claim. See Knight-Missoula,

252 Mont. at 243, 827 P.2d at 1276-77 (citing Rauser, 172 Mont. at 539, 565 P.2d at 638).

¶49 At issue in Deschner were alternative negligence and inverse condemnation claims

asserted by the owners of a home in the City of Billings against the state highway

department for compensation for property damage caused when a two-million-pound rock

19 As an example of our frequent doctrinal imprecision, our Knight-Missoula analysis was ambiguous insofar that we characterized the claim as a takings claim but then analyzed it in conflated reference to Adams which was clearly a non-taking consequential damaging claim. See Knight-Missoula, 252 Mont. at 240-42, 827 P.2d at 1275-76 (citing Adams, 230 Mont. at 398-401, 753 P.2d at 849-51, for proposition that Adams “makes clear” that under “limited[] circumstances . . . problems associated with increased traffic may be compensable” as an inverse condemnation); compare Adams, 230 Mont. at 395, 398, and 404, 753 P.2d at 847-48 and 852-53 (citing Knight-Billings quoting Less, 28 Mont. at 32, 72 P. at 141 (in re broader Montana constitutional “or damaged” protection) and People v. Symons, 357 P.2d 451, 454-55 (Cal. 1960) (discussing damage to private property caused by deleterious effects of “public improvement” on “adjoining” property)).

50 slab separated from the Billings Rimrocks and fell onto their home. Deschner, ¶¶ 3-5. The

homeowners alleged that the 1963 rerouting of a state highway closer to the Rimrocks, and

the accompanying installation of a drainage culvert thereunder, caused increased water

runoff onto the rockfall site, thereby destabilizing the rockface and causing the slab to

separate and fall. Deschner, ¶¶ 4-5. The State contrarily asserted that the subject highway

improvements were not substantial factors in causing the rockfall because the sole cause

of the rockfall was natural geologic processes, and hat the subject culvert blockage actually

decreased the amount of water runoff onto the site. Deschner, ¶ 6.

¶50 At trial, the District Court gave State-proposed jury instructions on the essential

elements of proof of a consequential damaging inverse condemnation claim which, inter

alia, incorporated the ad hoc California public policy considerations from Albers, 398 P.2d

at 136-37, as quoted in Rauser. See Deschner, ¶¶ 7 and 13. After the jury returned a verdict

in favor of the State on both claims, which included, inter alia, a specific finding that the

State’s conduct was not a substantial factor in bringing about the rockfall, the homeowners

asserted on appeal that the District Court erroneously instructed the jury on the essential

elements of the inverse condemnation claim by reference to the Albers public policy

considerations, and thus erred in submitting questions of law for jury determination as

questions of fact. Deschner, ¶¶ 8, 12-14, and 22. As a preliminary matter, we agreed and

held that the State’s proposed Albers-based jury instruction was an incorrect statement of

the law. Deschner, ¶ 21. We affirmed the defense verdict, however, on the ground that

both parties’ proposed instructions included proximate causation as an essential element of

51 the inverse condemnation claim, and because the homeowners in any event failed to prove

that the highway project was a substantial factor, i.e., a cause-in-fact, in bringing about the

rockfall. See Deschner, ¶¶ 21-22.

¶51 Construed in harmony, our above-referenced cases manifest that, except for our

overreading of Rauser, and beyond the threshold question of law as to whether a cognizable

property interest is at issue, the essential elements of a Montana non-taking consequential

damaging inverse condemnation claim are: (1) substantial physical damage or interference

to or with private property; (2) proximately caused by the construction or operation of a

nearby public improvement or property use; (3) the subject property damage or interference

is of a type or extent uncommon to the deleterious effect to which the improvement at issue

commonly subjects the public or community at large; and (4) actual pecuniary loss. See

Mont. Const. art. II, § 29 (“[p]rivate property shall not be . . . damaged for public use

without just compensation . . . to . . . the owner” – emphasis added); Rauser, 172 Mont. at

536-38, 565 P.2d at 636-38; Less, 28 Mont. at 31-32, 72 P. at 141; Root, 20 Mont. at

356-60, 51 P. at 155-57. As in the tort causation context, see Brishka, ¶ 15, Deschner, ¶ 19,

and Thelen, 238 Mont. at 86, 776 P.2d at 523, the proximate cause element of a

consequential damaging claim includes two component requirements: causation-in-fact

and, as at issue in a particular case, reasonable foreseeability of harm. See Rauser, 172

Mont. at 536-38, 565 P.2d at 636-38. The anomalous limiting language “as deliberately

planned and built” is thus not an included consideration in any essential element of proof

for a consequential taking or damaging Montana inverse condemnation claim. In contrast

52 to the Court’s formulation today, this formulation of the essential elements of a Montana

consequential damaging inverse condemnation claim is solidly and exclusively based on

Montana precedent, free of the corrupting influence of the anomalous “as deliberately

planned and built” language derived from the non-essential California public-policy-based

formulation unnecessarily quoted in Rauser and then perpetuated without analysis in

Knight-Missoula, et al.

D. Proximate Causation: Recognition of Simplified Montana Post-Busta Tort Causation Formulation in Inverse Condemnation Context.

¶52 Rauser correctly recognized that the proximate cause element of a consequential

taking or damaging claim includes two component requirements: causation-in-fact and, as

applicable, reasonable foreseeability of harm. See Rauser, 172 Mont. at 536-39, 565 P.2d

at 636-38 (“[i]t is enough to show” that the claimed damage was “caused by” the public

improvement at issue and was “a reasonabl[y] foreseeable consequence” thereof”). While

we have long recognized that the standard of proximate cause applicable in inverse

condemnation claims is the same as in tort claims, supra, we have strangely yet to reconcile

that general statement with our clarification and simplification of the historically nebulous

concept of common law proximate causation over 25 years ago. However variously stated

(whether as a requirement of causation-in-fact, legal cause, proximate cause, or some

combination thereof), the causation element of a common law tort claim historically

included two component considerations: whether the subject conduct or circumstance was

a cause-in-fact of the subject harm and, in regard to asserted independent intervening or

superseding causes, whether the subject harm was of a type within the scope or zone of

53 reasonably foreseeable risk commonly attendant or associated with the subject conduct or

circumstance. See, e.g., Young v. Flathead Cty., 232 Mont. 274, 281-83, 757 P.2d 772,

777 (1988); Restatement (Second) of Torts §§ 431 and 434 (Am. Law Inst. 1965); W.P.

Keeton, Prosser & Keeton On Torts §§ 41-45, at 263-321 (5th ed. 1984). See also Busta,

276 Mont. at 360-70, 916 P.2d at 133-39 (discussing “tortuous history” of the “law of

foreseeability” of harm “as it relates to liability law in Montana” – internal citations

omitted). We have thus recognized that the harm at issue in a particular case was of a type

reasonably foreseeable only if it occurred within the scope or zone of the risk of harm to

other persons or property reasonably likely, under the circumstances at issue, to directly or

indirectly result from the subject conduct or circumstance in a continuous sequence,

unbroken by some other cause. Gourneau ex rel. Gourneau v. Hamill, 2013 MT 300, ¶ 12,

372 Mont. 182, 311 P.3d 760 (internal citations omitted); Emanuel v. Great Falls Sch.

Dist., 2009 MT 185, ¶¶ 13-14, 351 Mont. 56, 209 P.3d 244 (internal citations omitted);

Fisher v. Swift Transp. Co., 2008 MT 105, ¶¶ 21 and 23-26, 342 Mont. 335, 181 P.3d 601

(internal citations omitted); Prindel v. Ravalli Cty., 2006 MT 62, ¶¶ 34 and 38-43,

331 Mont. 338, 133 P.3d 165 (internal citations omitted); LaTray v. City of Havre, 2000

MT 119, ¶¶ 24-26, 299 Mont. 449, 999 P.2d 1010 (internal citations omitted); Lopez v.

Great Falls Pre-Release Servs., Inc., 1999 MT 199, ¶¶ 26-31, 295 Mont. 416, 986 P.2d

1081 (internal citations omitted); Lacock v. 4B’s Restaurants, 277 Mont. 17, 21-22, 919

P.2d 373, 375-76 (1996); Busta, 276 Mont. at 360-72, 916 P.2d at 133-40 (tracing “tortuous

history” of “the law of foreseeability” back to Palsgraf v. Long Island R.R. Co., 162 N.E.

54 99 (N.Y. 1928)); Mang v. Eliasson, 153 Mont. 431, 436-38, 458 P.2d 777, 780-82 (1969)

(internal citations omitted); Mize v. Rocky Mt. Bell Tel. Co., 38 Mont. 521, 532, 100 P. 971,

973 (1909) (construing § 6068 Rev. Codes (1907), now § 27-1-317, MCA20), overruled on

other grounds by Dawson v. Hill & Hill Truck Lines, 206 Mont. 325, 671 P.2d 589 (1983);

Reino v. Mont. Mineral Land Dev. Co., 38 Mont. 291, 293-96, 99 P. 853, 854-55 (1909);

Palsgraf, 162 N.E. at 100 (“risk reasonably to be perceived . . . imports [the] relation” of

“risk to another or others within the range of apprehension” – emphasis added). However,

the foreseeability of harm component of proximate cause has never required that the

specific injury, or mechanism, manner, or sequence of injury, that actually occurred have

been reasonably foreseeable. See Emanuel, ¶ 13; Fisher, ¶ 26; Prindle, ¶ 39; Hinkle v.

Shepherd Sch. Dist. No. 37, 2004 MT 175, ¶ 30, 322 Mont. 80, 93 P.3d 1239 (internal

citation omitted); Samson v. State, 2003 MT 133, ¶ 26, 316 Mont. 90, 69 P.3d 1154

(internal citation omitted); Lacock, 277 Mont. at 21-22, 919 P.2d at 375-76 (construing §

27-1-317, MCA); Ekwortzel v. Parker, 156 Mont. 477, 483, 482 P.2d 559, 562-63 (1971)

(citing Mang and Reino); Mang, 153 Mont. at 437, 458 P.2d at 781 (internal citations

omitted); Mize, 38 Mont. at 532, 100 P. at 973 (construing § 6068 Rev. Codes (1907), now

§ 27-1-317, MCA); Reino, 38 Mont. at 295-96, 99 P. at 854-55.21

20 The general measure of tort damages “is the amount which will compensate for all the detriment proximately caused . . . whether it could have been anticipated or not.” See § 27-1-317, MCA (enacted Mont. Civ. Code § 4330 (1895)). 21 The concept of reasonable foreseeability of harm is the same whether as applicable to the duty element of a negligence claim, or as an included component of common law proximate cause. Hinkle, ¶ 30.

55 ¶53 Nonetheless, over the years, our tort and inverse condemnation jurisprudence has

inconsistently referred to proximate cause both as a causation requirement distinct from

causation-in-fact, and as a singular term encompassing both causation-in-fact and

foreseeability of harm. For example, many of our cases refer to causation-in-fact and

proximate or legal cause as distinct elements of proof in such claims. See, e.g., Brishka,

¶¶ 13 and 15 (noting “[p]roof of proximate cause is an essential element” of negligence,

strict liability in tort, and Montana inverse condemnation claims and that “proximate

cause” analysis is “identical” and “indistinguishable” in all three contexts – causation

element of such claims requires that the subject conduct or circumstance was both “the

actual and proximate cause” of the injury or harm at issue); Smith v. Kerns, 281 Mont. 114,

116-18, 931 P.2d 717, 718-19 (1997) (tort causation requires proof that the subject conduct

or circumstance “was the actual and proximate cause” of the subject harm); Busta, 276

Mont. at 367, 916 P.2d at 137 (quoting 1 Modern Tort Law § 5.02 at 159-62); Kitchen

Krafters, Inc. v. Eastside Bank of Mont., 242 Mont. 155, 168, 789 P.2d 567, 575 (1990)

(“[l]egal cause is synonymous with proximate cause” as distinct from causation-in-fact),

partially overruled by Busta, 276 Mont. at 369-73, 916 P.2d at 138-40 (inter alia, limiting

the role of foreseeability of harm as a causation consideration); Thelen, 238 Mont. at 85-86,

776 P.2d at 522-23 (noting that the analysis of “proximate cause” common to tort and

inverse condemnation claims “has not been defined clearly in Montana law” – citing

Young); Young, 232 Mont. at 281-83, 757 P.2d at 777 (tort causation requires proof of

causation-in-fact and that subject injury was “the direct or indirect result[] proximately

56 caused by” the conduct at issue and that “the distinction between causation in fact and

proximate cause, . . . occasionally referred to as legal cause, has not generally been made”

in Montana jurisprudence – emphasis added); Rauser, 172 Mont. at 538, 565 P.2d at 637

(“[i]t is enough” in an inverse condemnation claim “to show the damages were proximately

caused by the undertaking . . . and a reasonable foreseeable consequence” thereof –

emphasis added). In contrast, we have also inconsistently but more correctly referred to

proximate cause as encompassing distinct component requirements for proof of

causation-in-fact and reasonable foreseeability of harm not interrupted by some other

unforeseeable intervening cause-in-fact. See, e.g., Deschner, ¶¶ 21-22; Labair v. Carey,

2012 MT 312, ¶¶ 20-24, 367 Mont. 453, 291 P.3d 1160 (clarifying and reconciling

causation element of a legal malpractice claim as a combined function of causation-in-fact

and reasonable foreseeability of harm as clarified in Fisher, ¶¶ 36-39, and Busta, 276 Mont.

at 369-71, 916 P.2d at 139); Fisher, ¶¶ 13 and 38-42; Hinkle, ¶¶ 23 and 29-30; Busta, 276

Mont. at 370-72, 916 P.2d at 138-40; Thelen, 238 Mont. at 85-86, 776 P.2d at 522-23

(noting that “proximate cause” is a common element in inverse condemnation and tort

claims and requires proof of the asserted cause-in-fact and that the subject harm resulted

therefrom “in a natural and continuous sequence, unbroken by any new, independent

cause” and “without which” the subject harm “would not have occurred” – citing Young,

232 Mont. at 281-83, 757 P.2d at 777); Young, 232 Mont. at 281-83, 757 P.2d at 777

(clarifying that proximate cause encompasses distinct but related requirements for proof of

causation-in-fact, under “but for” or alternative “substantial factor” test, and proof that the

57 harm at issue resulted from the subject cause-in-fact “in a natural and continuous sequence,

unbroken by any new, independent cause” – internal citations omitted); Pickett v. Kyger,

151 Mont. 87, 100, 439 P.2d 57, 63-64 (1968).22 In 1996, we recognized that our tort

causation jurisprudence was further complicated by redundant consideration of

foreseeability of harm as both a threshold consideration of law in the duty element of a

negligence claim, and also as a factual and, as applicable in a particular case, legal

consideration under the proximate cause element of tort claims. See Busta, 276 Mont. at

360-70, 916 P.2d at 133-38 (internal citations omitted). We recognized further that the

concept of “proximate cause” had also lost its original common law “connotations of

proximity in time and space” and had become an “utter[ly] confus[ing]” and

“extraordinarily changeable concept” of “chameleon quality,” with “no integrated meaning

of its own,” to such extent that “[n]o other [legal] formula so nearly does the work of

Aladdin’s lamp.” Busta, 276 Mont. at 368-69, 916 P.2d at 137-38 (internal punctuation

and citations omitted).

E. Busta Clarification and Simplification of Foreseeability of Harm as a Consideration of Proximate Cause in Tort Context.

22 See also Burk Ranches, Inc. v. State, 242 Mont. 300, 304 and 308, 790 P.2d 443, 445 and 448 (1990) (referencing cause-in-fact and proximate cause as distinct elements of a negligence claim); Thelen, 238 Mont. at 85-87, 776 P.2d at 522-23 (noting “proximate cause” as a “required element” in an inverse condemnation claim” but that it “has not been clearly defined in Montana law”); Thornock v. State, 229 Mont. 67, 72, 745 P.2d 324, 327 (1987) (describing causation element of negligence claim requires proof that the subject conduct or circumstance was the “legal cause” of the subject harm), overruled in part on other grounds by Dukes v. Sirius Constr., 2003 MT 152, ¶¶ 57-58, 316 Mont. 226, 73 P.3d 781.

58 ¶54 In 1996, we acted to eliminate the nebulous “Aladdin’s lamp” character of the

concept of foreseeability of harm under Montana common law in regard to both the

threshold duty element of a negligence claim23 and, as pertinent here, the causation element

of tort claims. See Busta, 276 Mont. at 360-73, 916 P.2d at 133-40. As to the generally

applicable causation element in tort claims,24 we recognized that, with foreseeability of

harm often not at issue, tort causation often involves only a question of fact for jury

determination under either the causation-in-fact “but for” test or, when certain “multiple”

causes-in-fact are at issue, the alternative “substantial factor” test. Busta, 276 Mont. at

370-71, 916 P.2d at 139-40 (overruling and abandoning the perfunctory “two-tiered

analysis of causation” in every case as discussed in Kitchen Krafters, 242 Mont. at 168-69,

789 P.2d at 575). We nonetheless retained foreseeability of harm as a causation

consideration in a more limited role in two regards. First, in cases where a defendant asserts

that some other “independent intervening cause” broke or should break the “chain of

causation” that otherwise may exist under the appropriate causation-in-fact test, the

23 As specifically pertinent to negligence claims, we clarified that the primary role of foreseeability of harm is as a threshold question of law under the duty element of those claims. Busta, 276 Mont. at 370-71, 916 P.2d at 139-40. Foreseeability of harm has remained, however, as an unreferenced question of fact subsumed in the breach element of a negligence claim. See Busta, 276 Mont. at 372, 916 P.2d at 140 (citing Montana Pattern Jury Instruction 2.00 (rev. 2/7/91) (defining negligence as “the failure to use reasonable care” – “[n]egligence may consist of action or inaction” – “[a] person is negligent if he fails to act as an ordinarily prudent person would act under the circumstances”)). 24 While Busta focused on the role of foreseeability of harm in regard to the duty and causation elements of negligence claims, the common law tort causation standard applicable in negligence claims is similarly applicable in strict liability in tort claims and inverse condemnation claims. Brishka, ¶¶ 13 and 15 (noting “[p]roof of proximate cause is an essential element” of negligence, strict liability in tort, and Montana inverse condemnation claims).

59 causation element test is primarily a question of fact for proof and jury determination as to

whether the conduct or circumstance at issue “helped produce” the subject harm “in a

natural and continuous sequence” and whether the harm “would not have occurred

without” it. Busta, 276 Mont. at 370-71, 916 P.2d at 139-40 (quoting Montana Pattern Jury

Instruction 2.08 (rev. 11/1/89)).25 If so, the subject conduct or circumstance was a cause-

in-fact of a reasonably foreseeable type of harm. See Fisher, ¶¶ 38-42 (noting post-Busta

“two-tiered” causation “analysis” in re causation-in-fact and independent intervening

causation as a matter of fact); Busta, 276 Mont. at 370-71, 916 P.2d at 139-40 (clarifying

two-tiered requirement for factual proof of proximate cause).26 Due to the documented

25 An intervening cause is a new or separate factual occurrence or circumstance that combines with the subject conduct or circumstance at issue to cause the subject harm. See Cusenbary v. Mortensen, 1999 MT 221, ¶ 26, 296 Mont. 25, 987 P.2d 351; Busta, 276 Mont. at 371-73, 916 P.2d at 139-40; Restatement (Second) of Torts §§ 440-41, 442B, and 4443 (Am. Law Inst. 1965). An intervening cause-in-fact breaks the chain of causation between the subject conduct or circumstance and resulting harm at issue only if (1) the risk of such circumstance occurring and then combining with the subject conduct or circumstances to increase the risk of harm to persons or property in the vicinity was not reasonably foreseeable under the circumstances, Emanuel, ¶ 13; Larchick v. Great Falls-Billings Diocese, 2009 MT 175, ¶ 48, 350 Mont. 538, 208 P.3d 836 (internal citations omitted); Fisher, ¶¶ 38-42; Prindel, ¶ 39; Cusenbary, ¶¶ 25-26 and 30-31; Estate of Strever v. Cline, 278 Mont. 165, 175-76, 924 P.2d 666, 671-72 (1996) (essential question is whether the occurrence of such an intervening cause was of a type reasonably foreseeable as a “significant part of the risk involved in the” subject conduct or circumstance at issue, or “so reasonably connected with it” – another cause is not an independent intervening cause only if it is one that the tortfeasor “might reasonably foresee as probable” or “reasonably anticipate under the circumstances” – internal punctuation and citations omitted); Busta, 276 Mont. at 362 and 370-72, 916 P.2d at 134 and 139-40 (internal citations omitted); or (2) the subject harm is under the circumstances too attenuated as a matter of law from the subject conduct or circumstance for imposition of liability based on pertinent public policy considerations, Busta, 276 Mont. at 361-64 and 370-72, 916 P.2d at 133-35 and 139-40 (citing Palsgraf, 162 N.E. at 103-04 (Andrews, J. dissenting)). 26 In that regard, the alleged contributory negligence of a claimant is not an intervening cause-in-fact, but rather, a contributing cause-in-fact subject to the alternative “substantial factor” test of causation-in-fact. Busta, 276 Mont. at 371, 916 P.2d at 139-40. 60 risk of confusing lay jurors with confusing technical legal terms, we held that jury

instructions generally should not include “terms such as ‘proximate cause’ or ‘legal cause’

and ‘reasonable foreseeability.’” Busta, 276 Mont. at 371-72, 916 P.2d at 140 (concurring

with similar view of California Supreme Court quoted from Mitchell v. Gonzales, 819 P.2d

872, 877-78 (Cal. 1991)).

¶55 Second, “[t]o the extent that foreseeability” of harm may implicate important

“issues of public policy” regarding the chain of causation, we held that the court must

address the question as a threshold “issue of law.” Busta, 276 Mont. at 372, 916 P.2d at

140. In that regard, we noted Justice Andrew’s dissenting view in Palsgraf that proximate

cause necessarily includes consideration as to at what point, in the sequential chain of

causation under the alleged circumstances, the alleged causal connection-in-fact between

the subject conduct or circumstance and the alleged harm is too attenuated to impose

liability based on pertinent public policy considerations. See Busta, 276 Mont. at 361-62,

916 P.2d at 133-34 (discussing Palsgraf, 162 N.E. at 103-04 (Andrews, J., dissenting)).27

F. Application of Clarified Busta Formulation of Proximate Cause and Foreseeability of Harm in Consequential Taking and Damaging Inverse Condemnation Claims.

27 For example, abandoning our prior public policy view, we have recognized as a matter of law that a third party’s voluntary choice to consume alcoholic beverages should and may not be an independent intervening cause which breaks the chain of causation between an alcohol provider and injury to another caused by an intoxicated person who consumed it. See Nehring v. LaCounte, 219 Mont. 462, 469-70, 712 P.2d 1329, 1334-35 (1986); Bissett v. DMI, Inc., 220 Mont. 153, 157, 717 P.2d 545, 547-48 (1986). Accord Jevning v. Skyline Bar, 223 Mont. 422, 424, 726 P.2d 326, 327 (1986) (applying Nehring and Bissett); Cusenbary, ¶¶ 25-39 (citing Nehring and Jevning in re independent intervening causes).

61 ¶56 In contrast to the concept of proximate cause that was prevalent in common law tort

jurisprudence prior to adoption of our 1889 Constitution, our inverse condemnation

jurisprudence did not specifically refer to “proximate cause” or reasonable foreseeability

of harm or damage until Rauser in 1977. As early as 1897, however, we clearly recognized

that the Montana constitutional right to just compensation for private property damaged

for public use entitles private property owners to compensation for both general damages

and special damages (i.e., consequential damages) caused by a public improvement or land

use. Root, 20 Mont. at 356-58, 51 P. at 155-56. Then and now, general damages were

those that are the “natural and necessary” result of the subject occurrence or circumstance,

while special damages are those that are the “natural but not necessary” result of the

occurrence or circumstance. Purington v. Sound W., 173 Mont. 106, 111-12, 566 P.2d 795,

798 (1977); Root, 20 Mont. at 356-57, 51 P. at 155-56. The causation standard for

consequential damaging claims first recognized in Root thus tracked and essentially

applied the contemporary common law tort standard of proximate cause then codified in

Mont. Civ. Code § 4330 (1895) (now § 27-1-317, MCA),28 which then and now defined

the tort “measure of damages” as “the amount which will compensate for all detriment

proximately caused . . . whether” the particular harm at issue “could have been anticipated

or not.” See Lacock, 277 Mont. at 21-22, 919 P.2d at 375-76 (noting that pre-Busta

articulation of proximate cause in Kitchen Krafters, 242 Mont. at 169, 789 P.2d at 575

28 Mont. Civ. Code § 4330 (1895) (now § 27-1-317, MCA) was as adopted from the Cal. Civ. Code § 333 (1872) enactment of Section 1860 of the proposed but never-enacted David Dudley Field Civ. Code of N.Y. (1865).

62 (requiring proof that the subject injury was reasonably “foresee[able]” as the “the natural

and probable consequence of” the conduct or circumstance at issue – emphasis added),

was a partially correct but “incomplete” statement “of Montana law on proximate cause”

that must be construed in harmony with the last clause of § 27-1-317, MCA, manifesting

“that the specific injury” at issue “need not have been” foreseen); Busta, 276 Mont. at

360-73, 916 P.2d at 133-40 (tracing the history of the “law of foreseeability” of harm);

Spackman v. Ralph M. Parsons Co., 147 Mont. 500, 506, 414 P.2d 918, 921 (1966) (tort

causation generally requires the subject harm to be the “natural and probable consequence”

of the conduct or circumstance complained of and which “may include both the direct and

indirect[] but reasonably probable[] results” thereof – emphasis added); Hill v. Chappel

Bros. of Mont., Inc., 93 Mont. 92, 104-05, 18 P.2d 1106, 1110 (1932); Mize, 38 Mont. at

532, 100 P. at 73 (“proximate cause” requires that the subject harm be the “natural” result

of the subject conduct or circumstances, “without which the injury would not have

occurred,” in a “continuous sequence, unbroken by any new[] independent cause” – “it is

not necessary to show that [defendant] ought to have anticipated the particular injury which

did result” – construing § 6068 Rev. Codes (1907), now § 27-1-317, MCA); Reino, 38

Mont. at 295-96, 99 P. at 854-55 (proximate cause requires that the subject harm be of a

type reasonably foreseeable or anticipated “as the probable result” of the subject conduct

or circumstance but does “not require[] that the ‘specific’ injury[,] or ‘such’ an injury[,]”

was reasonably foreseeable “as the natural and probable consequence of” the subject

conduct or circumstances – “such consequences might be the natural and probable results”

63 even though “not . . . specifically contemplated or anticipated” – internal punctuation and

citation omitted); Palsgraf, 162 N.E. at 100-01 (ultimately holding that the subject injury

to the claimant caused by a falling scale at the other end of railroad platform was not

reasonably foreseeable as a natural and probable result, in a continuous sequence, of a

railroad guard helping another passenger to jump from the platform onto a moving train

where the guard had no reason to suspect that the package carried by the jumping passenger

might contain explosives that could detonate if dropped).29 See also W.P. Keeton, Prosser

& Keeton On Torts § 43, p. 282 (5th ed. 1984) (noting semantic “difficulties” in historic

causation formulations requiring that the subject harm be the “natural and probable

consequence” of the subject conduct or circumstance because those terms “appear to

have . . . no more definite meaning than” the nebulous concept of “proximate” cause that

they sometimes define because, “[s]trictly speaking, all consequences are ‘natural’ which

occur through operation of forces of nature, without human intervention,” “[b]ut the word,

as used, obviously appears not to be intended to mean [that] at all,” but rather, “to refer to

consequences which are normal, not extraordinary, [and] not surprising in the light of

ordinary experience” – if the term “[p]robable” “is to add anything” in this context it “must

refer to consequences which were to be anticipated at the [subject] time” and thus “appears

29 Further manifesting the consistent application of the common law proximate cause standard to Montana inverse condemnation claims from the outset, we recognized early on, in recognizing the even broader “taken or damaged” protection first provided in our 1889 Constitution, that “[c]onstitutions which provide that ‘private property shall not be taken for public use without just compensation’ are but declaratory of the [preexisting] common law.” Less, 28 Mont. at 32, 72 P. at 141 (emphasis original). Accord Brishka, ¶ 15; Deschner, ¶ 19; and Thelen, 238 Mont. at 86, 776 P.2d at 523.

64 to come out as the equivalent of the test of foreseeability” in regard to the range of likely

“consequences within the scope of the original risk” – altered punctuation and emphasis

¶57 Consequently, reconciling Root, Less, and a correct reading of Rauser with Busta,

the essential elements of proof of a consequential damaging inverse condemnation claim

are: (1) substantial physical damage or interference to or with private property; (2) caused

by the construction or operation of a public improvement or land use (with causation

determined under our clarified common law causation standards specified in Busta, 276

Mont. at 370-72, 916 P.2d at 139-40, which carry forward the historical requirements of

proximate cause and foreseeability of harm as clarified); (3) the subject property damage

or interference is of a type or extent uncommon to the deleterious effect to which the

improvement at issue commonly subjects the public or community at large (as recognized

in Adams, 230 Mont. at 401-02, 753 P.2d at 851 (quoting 5 Nichols on Eminent Domain,

§ 16.101[2], p. 6-13), and Root, 20 Mont. at 356-60, 51 P. at 155-57); and (4) actual

pecuniary loss. Under the causation element of the claim in accordance with Busta, in

cases where there is no defense assertion that some cause other than the construction or

operation of the subject public improvement or property use was the cause of the alleged

property damage or interference, the causation element simply requires proof of

causation-in-fact under the single cause “but for” test. Busta, 276 Mont. at 370-71, 916

P.2d at 139. However, in cases “where [the] chain of causation” is at issue (i.e., where the

defendant asserts that some cause other than the construction or operation of the subject

65 public improvement or property use was the independent intervening cause of the alleged

property damage or interference, and thus breaks the chain of causation and cuts off the

defendant’s liability), the causation element of the claim requires more stringent factual

proof and jury determination that the subject public improvement or use “helped produce”

the claimed property damage or interference “in a natural and continuous sequence,” and

that the damage or interference “would not have occurred without” it. Busta, 276 Mont. at

370-71, 916 P.2d at 139-40 (quoting Montana Pattern Jury Instruction 2.08 (rev. 11/1/89)).

But, in a case where the defendant asserts that, regardless of a natural and continuous

sequential chain of causation-in-fact, pertinent public policy considerations warrant

truncation of the chain of causation and liability between the subject public improvement

or use and the ultimate private property damage or interference, the court must address that

question as a threshold matter of law. See Busta, 276 Mont. at 371-72, 916 P.2d at 139-40

(referencing Palsgraf, 162 N.E. at 103-04 (Andrews, J., dissenting), as earlier discussed at

276 Mont. at 361-62, 916 P.2d at 133-34); Rauser, 172 Mont. at 538-39, 565 P.2d at 637-38

(referencing ad hoc California public policy considerations from Albers, 398 P.2d at

136-37, as “guides” “applicable to [that] case” in re “unplanned for problems [that] arise

[and] damage adjacent property” in absence of any tortious conduct). In such case, the

court must consider and balance as a threshold matter of law the following offsetting public

policy considerations:

(1) whether the risk of such harm is so remote or attenuated in sequence in the absence of tortious conduct that the imposition of liability under such circumstances would pose a significant risk of increasing public costs and

66 liability to such extent to impede or deter the continued provision of such beneficial public improvements or works; and

(2) whether the burden of paying for such non-tortious property damage or interference is more readily and fairly absorbed by the taxpayers as a whole, who are the collective beneficiaries of such public improvements or works, with significantly less hardship than would be experienced by the peculiarly-damaged individual property owner(s).

See Kafka, ¶ 69 (“even when a compensable property interest still retains economic value”

court must consider whether “justice and fairness require that economic injuries caused by

public action be compensated by the government, rather than remain disproportionately

concentrated on a few persons” – citing Penn Cent. Transp. Co. v. City of New York, 438

U.S. 104, 124, 98 S. Ct. 2646, 2659 (1978) (in re ad hoc considerations applicable in

regulatory takings cases) – internal punctuation omitted); Rauser, 172 Mont. at 538-39,

565 P.2d at 637-38 (referencing ad hoc California public policy considerations from

Albers, 398 P.2d at 136-37, as “guides” “applicable to [that] case” in re “unplanned for

problems [that] arise [and] damage adjacent property” in absence of any tortious conduct);

Biron v. City of Redding, 170 Cal. Rptr. 3d 848, 856-57 (Cal. Ct. App. 2014) (“courts must

balance the interests of property owners, who should not be required to contribute more

than their fair share to the public undertaking, with the possibility that imposing open-

ended liability on public entities charged with creating and maintaining” such necessary

and beneficial public improvements and works “will discourage the[ir] development” – the

fact that resulting “harm is foreseeable does not necessarily mean the public entity is

unreasonable in failing to protect against it if the probability, frequency, and magnitude of

the damage is low in relation to the cost and ability to protect against the harm” – internal

67 punctuation and citation omitted); Adams, 230 Mont. at 401, 753 P.2d at 850-51 (noting

risk of opening “Pandora’s Box” of governmental liability for adverse effects of public

roadway development and improvement and that the “wheels of progress shall not be

slowed” where the deleterious effects on residential use also correspondingly increase the

value and utility of the property for commercial use); Busta, 276 Mont. at 361-62 and

371-72, 916 P.2d at 133-34 and 139-40 (citing Palsgraf, 162 N.E. at 103-04 (Andrews, J.,

dissenting), in re foreseeability of harm as a function of “practical politics”).

¶58 Accordingly, as we have in other contexts post-Busta, see, e.g., Lacock, 277 Mont.

at 22, 919 P.2d at 376 (holding that pre-Busta articulation of proximate cause reasonable

foreseeability requirement was an incomplete statement of the law and that the subject tort

claim “must be retried pursuant to our” Busta-clarified causation standards), it is time for

this Court to similarly reconcile the still nebulously-stated proximate cause element of

consequential taking and damaging inverse condemnation claims, with our Busta-clarified

formulation of common law causation. Only by doing so, and concomitantly abandoning

our continued over-reading of Rauser, can this Court finally clean up the analytical

imprecision and inconsistency that, as of today, now further plagues our consequential

damaging inverse condemnation jurisprudence with an archaic, nebulous, and inconsistent

standard of causation, unique to inverse condemnation claims, and which is further

artificially limited by the manifestly superfluous, and never heretofore adopted, “as

deliberately planned and built” language clipped out of context without analysis from

68 California public policy considerations unnecessarily referenced in Rauser, a case that was

not even a consequential damaging case.

5. Flaws in Application of Court’s Analysis to Factual Record Underlying Wittmans’ Consequential Damaging Here.

¶59 In applying its new and uniquely restrictive “deliberately planned and built”

causation standard here, the Court reasons that the subject raw sewage backup into the

Wittmans’ basement was not a constitutional damaging because:

the record does not reflect that the City deliberately planned and built its sewer system in such a way that made [such property] damaging . . . foreseeable. [It] designed its system to accomplish disposal of “toilet paper, fecal matter, and urine,” not to accommodate the improper disposal of other products [of which] no sewer system is capable of . . . accommodat[ing]. . . . [T]he system, “as planned and built,” did not proximately cause the damage to Wittmans’ property . . . [because] this backup was caused by misuse of the system.”

Opinion, ¶ 26 (emphasis added). The Court’s rationale is patently flawed in multiple

regards.

¶60 First and foremost, as we often previously did in the tort context before Busta, the

Court’s cursory analysis not only continues to use the archaic and hopelessly nebulous

“proximate cause” terminology now abandoned in the tort context, but then once again

circularly analyzes foreseeability of harm as a causation consideration separate and distinct

from proximate cause. Moreover, the Court’s additional coupling of the foreseeability of

harm requirement with the anomalous “deliberately planned and built” language above and

beyond the traditional proximate cause standard—a causation standard supposedly equally

applicable in inverse condemnation claims as in tort—effectively creates a new and more

69 restrictive causation standard that further requires proof that the subject property damage

have been a specifically contemplated, i.e., planned-for, consequence of the subject public

improvement.30 Until today, however, nothing in our tort and inverse condemnation

causation jurisprudence even hinted at a heightened causation standard that would not only

require proof that a public improvement was the cause-in-fact of a reasonably foreseeable

type of offsite private property damage, but also proof that the subject public entity

deliberately or specifically contemplated that the public improvement would cause that

specific type of offsite damage to private property. As previously noted, supra, it is

long-and well-settled, both pre- and post-Busta, that reasonable foreseeability of harm does

not require that the particular harm, or mechanism, manner, or type of harm, at issue be a

reasonably foreseeable result, much less a “deliberate” or specifically planned-for result,

of the subject conduct or circumstance—it requires only that it be of a type within the scope

or zone of reasonably foreseeable risk, as that component of proximate cause is now

subsumed as matters of fact and law in our Busta-clarified causation standards.

¶61 Second, the Court’s analysis inaccurately cites and applies our holdings in

Knight-Billings, Rauser, and Less as illustrative of its newly-recognized “as deliberately

planned and built” causation standard for consequential damaging inverse condemnation

claims. Opinion, ¶ 28 (asserting that those cases illustrate by contrast “the lack of

foreseeability” that the City sewer system would cause the raw sewage backup into the

30 If not, the anomalous “as deliberately planned and built” language adds nothing to the causation analysis and is indeed superfluous despite the Court’s protestation to the contrary.

70 Wittmans’ home). However, as a threshold analytical matter, neither Knight-Billings, nor

Rauser, were consequential damaging inverse condemnation cases. As previously noted,

Knight-Billings was a regulatory taking case involving restrictive zoning regulation that so

significantly and disparately restricted the “use and marketability” of the plaintiffs’

properties for government-required residential use to be tantamount to a “taking” of those

properties for public use. See Knight-Billings, 197 Mont. at 173-74, 642 P.2d at 145.

Rauser was a consequential taking case involving consequential damage to adjacent private

property so substantial and comprehensive to be tantamount to an actual physical

appropriation or ouster of the owner from use of the property. Rauser, 172 Mont. at 533-38

and 543, 565 P.2d at 635-37 and 640 (expressly characterizing the claim as a “taking” and

the property as having been “taken”). Even so, while the Court correctly notes that the

government entities intentionally designed and built the subject public improvements to

substantially increase traffic in Knight-Billings, significantly lower the adjoining city street

grade in Less, and with knowledge that the irrigation district improvements in Rauser

would flood adjoining private property, nothing in any of those cases expressly or

implicitly held that successful prosecution of the various types of inverse condemnation

claims at issue depended on proof that the subject public improvements were designed and

built with the deliberate intent or contemplation that they would cause the specific types of

private property damage at issue in those cases. See Knight-Billings, 197 Mont. at 168-74,

642 P.2d at 143-46; Rauser, 172 Mont. at 537-39, 565 P.2d at 637-38; Less, 28 Mont. at

31-34, 72 P. 141-42. To the extent that causation was at issue in those cases, Rauser

71 required only that the subject private property damage was a “reasonabl[y] foreseeable

consequence of the undertaking.” Rauser, 172 Mont. at 538, 565 P.2d at 637.31 In

Knight-Billings and Less, causation, whether causation-in-fact or the foreseeability of the

subject private property damage, was not even at issue. See Knight-Billings, 197 Mont. at

168-74, 642 P.2d at 143-46; Less, 28 Mont. at 31-33, 72 P. 141-42. Thus, contrary to the

Court’s assertion in Opinion, ¶ 28, those cases clearly do not by contrast illustrate “[t]he

lack of foreseeability” of the subject harm here.

¶62 Third, the primary support for the Court’s assertion that the subject raw sewage

backup into the Wittmans’ home was not reasonably foreseeable for purposes of causation

is its isolated citation to the low “statistical possibility” of such an occurrence on the

evidentiary record here. The fallacy of that reasoning is belied by the Court’s manifest

disregard of the slew of other material facts in this case. Despite the Court’s narrow focus

on the superficially deceptive statistical data regarding the relatively low number of sewer

backups in Billings, the City acknowledges that 10-15 raw sewage backups from its sewer

system onto private property occur each year. The Court’s cursory analysis further

31 We merely noted in Rauser that the consequential property damage or interference at issue was in fact inevitable on the particular evidentiary record in that case, and thus readily satisfied the lesser proximate cause requirement that the subject damage be a reasonably foreseeable result of the subject improvement. See Rauser, 172 Mont. at 536-38, 565 P.2d at 636-37. See similarly Root, 20 Mont. at 356-60, 51 P. at 155-57 (noting that the subject interference with use of the adjacent private property was “not a natural and necessary result” of the subject railroad operation but nonetheless constitutionally compensable on remand upon pleading and proof that it was “damage[] . . . specially sustained” as a “natural” but “not the necessary” consequence of the improvement).

72 similarly ignores various other material facts not subject to genuine dispute on the Rule 56

record in this case:

(1) the Wittmans’ service line laterally connected to the City sewage main was installed in 2007-09 and “is relatively new”;

(2) there is no evidence upon which to reasonably conclude or suspect that the Wittmans’ service line was improperly installed or maintained in deviation from City system specifications;

(3) sewage backup into an upline property service line, with resulting property damage, is an inherent and significant risk in the event of a blockage in a City sewage main as the system is currently designed and operated;

(4) as candidly acknowledged by the City Public Works director (Scott Emerick), grease disposal, whether residential or commercial, into the City sewer system will inevitably accumulate on sewer “pipe walls” and “keep[] collecting until it eventually chokes off the pipe” flow;

(5) the City has long been aware that the flushing of grease and other insoluble substances (such as non-toilet paper disposable wipes) is a common occurrence in the operation of municipal sewer systems and thus will inevitably result in sewer main backups into upline service lines, to wit:

[Y]ou can’t control what people flush. So . . . you’re always going to have some [sewer main backups into service lines]. I don’t care what system you look at. . . . [E]very community has sanitary sewer overflows. You could have a brand new system similar to this, and you’re going to have [backups] because somebody’s flushing something that they shouldn’t be in the wastewater stream. . . . [Question:] And that’s just kind of a necessary part of the design of these systems? [Answer:] That’s correct. [(Emphasis added)];

(6) the City’s retained sewer system expert (City of Bozeman Public Works official John Alston) similarly acknowledged that the flushing of grease, fats, oils, and other non-soluble “trash” into municipal sewer systems is an “inherent” “nationwide” problem despite that municipal sewer systems are not designed to handle such substances and materials and that the City discourages and “does not plan” for them;

73 (7) the City has occasionally used newspaper and Internet ads to implore residents to avoid flushing grease into the sewer system, and has even enacted an ordinance prohibiting industrial grease discharges in excess of a specified tolerance. However, the ordinance does not apply to residential users;

(8) 10-15 City sewage main backups into homes and businesses occur on average per year, largely attributed to sewage main grease accumulation;

(9) a grease accumulation in a down-line City sewer main was the sole cause of a sewer main blockage that resulted in the subject backup of approximately 1,000 gallons of raw sewage into the Wittmans’ home and resulting property damage;

(10) the City sewer system, as currently designed and operated, helped produce the subject sewage main clog, sewage backflow, and resulting property damage in a natural and continuous sequence, in conjunction with the common grease discharge practice of its users (which, though undesirable, is not illegal), and which backflow and damage would not have occurred without the system as currently designed and operated;

(11) there is no evidence upon which to reasonably conclude or suspect that the subject grease accumulation, clog, and sewage backup was the result of negligence or other tortious conduct by the City in the design, construction, maintenance, or operation of the system; and

(12) there is no evidence upon which to reasonably conclude or suspect that the Wittmans in particular caused or otherwise helped bring about the subject grease accumulation, resulting sewer main clog, or sewage backup.

Based on the totality of the record facts in this case, it is thus beyond genuine material

dispute that raw sewage backups from the City sewer system onto private property, such

as occurred here, are a known and reasonably foreseeable risk of harm associated with the

system as currently designed and operated.32

32 Unlike the municipal defendant in Oroville, the City of Billings does not require its sewer system users to install and maintain functioning backwater valves on their service line laterals, see Oroville, 446 P.3d at 307-09, nor has it made any assertion, much less evidentiary showing as to the technical and financial feasibility or cost-benefit analysis of doing so. 74 ¶63 Fourth, the Court further asserts that the City sewer system “did not proximately

cause the damage to Wittmans’ property” because it “was caused by misuse of the system.”

As a preliminary matter, the Court correctly points out that it is beyond genuine material

dispute that the “City designed its system to accomplish disposal of ‘toilet paper, fecal

matter, and urine,’ not to accommodate improper disposal of other products [of which] no

sewer system is capable of . . . accommodat[ing].” It is similarly beyond genuine material

dispute that the undesirable flushing of grease and other insoluble substances by sewer

system users is the primary cause of sewage system backups into upline service lines.

However, in essence, the Court’s assertion, tracking the City’s assertion, is no more than

an assertion that the cause of the subject sewage backup, and resulting property damage,

was misuse of the system by system users combined with the limitation of the City sewer

system as designed and operated. In other words, by operation of applicable causation

principles, the City sewer system and third-party misuse thereof were both contributing

causes-in-fact that combined to cause the subject damage to Wittmans’ property. Thus, to

the extent that it asserts that misuse of the system was the precipitating cause of the subject

harm, rather than the limitations of the sewer system, the Court is essentially asserting that

third-party misuse of the system was an independent intervening cause that broke the chain

of causation-in-fact between the sewer system and resulting sewage backup damage to the

Wittmans’ home.

¶64 However, whether pre- or post-Busta, the problem with the Court’s reasoning is

that, as a matter of law, an intervening cause breaks the chain of causation between a

75 contributing antecedent cause-in-fact only if the intervening cause was of a type not

reasonably foreseeable to occur and combine with the antecedent cause to cause the

resulting injury at issue. Larchick v. Great Falls-Billings Diocese, 2009 MT 175, ¶ 48,

350 Mont. 538, 208 P.3d 836; Fisher, ¶¶ 38-42; Prindel, ¶ 39; Hinkle, ¶¶ 29-30; Cusenbary

v. Mortensen, 1999 MT 221, ¶¶ 25-26 and 30-31, 296 Mont. 25, 987 P.2d 351; Estate of

Strever v. Cline, 278 Mont. 165, 175-79, 924 P.2d 666, 671-74 (1996); Busta, 276 Mont.

at 360-66 and 370-72, 916 P.2d at 133-36 and 139-40 (internal citations omitted); Sizemore

v. Mont. Power Co., 246 Mont. 37, 47, 803 P.2d 629, 635-36 (1990); Kitchen Krafters, 242

Mont. at 168, 789 P.2d at 574-75; Goodnough v. State, 199 Mont. 9, 16, 647 P.2d 364,

367-68 (1982); Halsey v. Uithof, 166 Mont. 319, 327-28, 532 P.2d 686, 690-91 (1975);

Gilligan v. City of Butte, 118 Mont. 350, 357-58, 166 P.2d 797, 801 (1946); Burns v.

Eminger, 84 Mont. 397, 408, 276 P. 437, 442 (1929); McCloskey v. City of Butte, 78 Mont.

180, 184-88, 253 P. 267, 268-69 (1927); W.P. Keeton, Prosser & Keeton On Torts

§§ 44-45, at 301-321 (5th ed. 1984). See also Thelen, 238 Mont. at 85-86, 776 P.2d at

522-23 (noting that “proximate cause” is a common element in inverse condemnation and

tort claims and requires proof of the asserted cause-in-fact and that the subject harm

resulted therefrom “in a natural and continuous sequence, unbroken by any new,

independent cause” and “without which” the subject harm “would not have occurred”).

Here, the City’s retained sewer system expert acknowledged that the flushing of grease,

fats, oils, and other non-soluble “trash” into municipal sewer systems is an “inherent”

“nationwide” problem despite that municipal sewer systems are not designed to handle

76 such substances and materials and that the City discourages and “does not plan” for them.

It is further beyond genuine material dispute on the Rule 56 record that, with knowledge

of such misuse, the City of Billings has occasionally used newspaper and Internet ads to

implore residents to avoid flushing grease into the sewer system and has enacted an

ordinance prohibiting industrial grease discharges in excess of a specified tolerance.

Significantly, however, the ordinance does not apply to the disproportionately larger

number of residential users. Under these circumstances, the misuse of the sewer system

asserted by the Court and City as the precipitating cause of the backup of raw sewage into

the Wittmans’ home was not only a reasonably foreseeable occurrence associated with the

design and operation of its sewer system, but a well-known occurrence and resulting

contributing cause-in-fact of sewer system backups, and resulting property damage,

including the subject backup and damage to the Wittmans’ home. Thus, the Court’s finding

and holding that misuse of the system, rather than its design and operational characteristics,

was the sole cause of the Wittmans’ property damage is patently erroneous.

¶65 Fifth, the Court further cursorily distinguishes the Wittmans’ property damage from

a constitutionally compensable damaging of private property by characterizing it as merely

“an incidental or inadvertent consequence of the operation of the [City sewer] system.”

Opinion, ¶ 27 (emphasis added). Aside from the lack of supporting authority giving any

legal significance to that distinction, the Court’s characterization of the subject property

damage as a “consequence of the operation of the system” is a manifest recognition that

the sewer system was a contributing cause-in-fact of that damage.

77 ¶66 Based on isolated language snipped out of context from Less, the Court similarly

attempts to distinguish Wittmans’ property damage as “a ‘temporary spoliation or invasion

of the property.’” Opinion, ¶ 27 (quoting Less, 28 Mont. at 32, 72 P. at 141). In context,

however, the source of the quoted snippet from Less was a Georgia case noting that, in

contrast to constitutional provisions that protect only against the taking of private property,

a constitutional provision that more broadly protects against the taking or damaging of

private property requires compensation for “any damage” to private property caused by a

public improvement, regardless of whether “immediate and direct” or merely

“consequential damage,” including “temporary spoliation or invasion of the property.”

Green, 67 Ga. at 387-89 (emphasis added). Thus, in context, the isolated language snipped

by the Court from Less to deny compensation to the Wittmans in fact contrarily recognized

that the Montana constitutional right to compensation for private property damaged by a

public improvement applies to any “consequential damage” to private property caused by

a public improvement, including “temporary spoliation or invasion of the property.” See

Less, 28 Mont. at 32, 72 P. at 141 (quoting Green in conjunction with Root, inter alia).

¶67 Sixth, as we have since Rauser, the Court continues to erroneously conflate

principles unique to consequential takings with the broader “or damaged” protection

provided by Article II, Section 29. The Court twice notes that Rauser, as “reaffirmed” in

Knight-Missoula, requires that “‘the extent of [the claimed damage] be of such a degree’

as to constitute ‘a taking of an interest in the property damaged,’” Opinion, ¶¶ 22-23 (citing

Rauser and Knight-Missoula – emphasis added). It then further asserts that:

78 [f]or a damage claim less than a complete taking, the property must have been damaged to such a degree as to constitute a permanent taking of the property, and not merely have caused . . . temporary damage [to the property].

Opinion, ¶ 25 (emphasis added). The Court thus concludes that “we cannot conclude that

‘the extent of that damage’” to the Wittmans’ property was “‘of such a degree as to amount

to a taking of an interest in the property damaged.’” Opinion, ¶ 27 (quoting Rauser –

emphasis added).

¶68 However, as previously noted, neither Knight-Missoula, nor Rauser, were

consequential damaging cases—they were takings cases. See Knight-Missoula, 252 Mont.

at 240, 827 P.2d at 1275 (analyzing the indiscriminately pled inverse condemnation claim

as a consequential and/or regulatory taking claim based on claimed interference with

private property rights caused by the deleterious effects of increased public use of the

roadway and the City’s refusal to close it and noting that “a question of fact” remained as

to whether “a taking” occurred – emphasis added); Rauser, 172 Mont. at 533-38 and 543,

565 P.2d at 635-37 and 640 (expressly characterizing the consequential effect of the subject

improvement as “taking” and the property having been “taken” because the consequential

property damage to the adjacent private property was so substantial and comprehensive to

be tantamount to an actual physical appropriation or ouster of the owner from use of the

property). The Court’s unsupported assertions in Opinion, ¶¶ 22-23, 25, and 27, that a

compensable consequential damaging occurs only if the extent of the claimed damage is

of such a degree to constitute a taking of an interest in the property damaged by the public

improvement, is patently inconsistent with the broader “taken or damaged” protection

79 expressed in Article II, Section 29. Thus, as recognized in Root, Less, and their cited

internal authority, the Montana constitutional right to compensation for private property

damaged by a public improvement does not depend on proof that the subject private

property was damaged to such an extent to be tantamount to a taking of any part or interest

in the property.

¶69 Seventh, further compounding its manifest mischaracterization of isolated language

snipped out of context from Less with its erroneous conflation of consequential taking and

damaging claims, the Court erroneously asserts that a compensable consequential

damaging of private property does not occur unless the public improvement causes

“permanent” damage to the property, as distinct from mere “temporary spoliation” or

“infringement” upon the right to use and enjoy private property. See Opinion ¶¶ 20 and

25. However, as previously demonstrated, supra, the “temporary spoliation or invasion”

language lifted from Less does not support the Court’s assertion. Nor does the “mere

infringement of the owner’s personal pleasure or enjoyment” language similarly

cherry-picked from Less. In context, Less merely recognized that, in contrast to the “mere

infringement of the owner’s personal pleasure or enjoyment” the Montana right to

compensation for private property damaged by a public improvement applied only to actual

“damage to the property itself,” rather than “mere infringement of the owner’s personal

80 pleasure or enjoyment.” Less, 28 Mont. at 33-34, 72 P. at 141-42 (citing Eachus v. Los

Angeles Consol. Elec. Ry. Co., 37 P. 750, 751 (Cal. 1894)).33

¶70 We have long recognized, moreover, that the constitutionally required

compensation for consequential damage to private property caused by a public

improvement includes, inter alia, costs incurred to repair temporary physical property

damage. See Eby, 55 Mont. at 126, 173 P. at 1166-67 (consequential damaging inverse

condemnation claim in re consequential cost of restoring access to adjoining private

property impaired upon significant increase in city street grade – “plaintiff should be

reimbursed to the extent of the injury to the property” including “the cost of repairing” “[i]f

the injury is easily reparable” and the cost “reasonable” – quoting 3 Sedgwick on

Damages). 34 See also State ex rel Vol. Mining Co. v. McHatton, 15 Mont. 159, 161-62, 38

33 Eachus further noted, inter alia, that the private property owner is entitled to compensation for “the entire damage . . . sustained by the act of the defendant” in the construction of the subject public improvement. Eachus, 37 P. at 753. 34 See similarly Primetime Hospitality, Inc. v. City of Albuquerque, 206 P.3d 112, 116-25 (N.M. 2009) (private property owner right under state constitutional “taken or damaged” provision to consequential damages for lost profits and additional construction costs resulting from water damage caused by accidental rupture of city water line encroaching on private property). Even the more limited Fifth Amendment right to just compensation for private property taken for public use includes compensation for property and property interests only temporarily taken. See United States v. Pewee Coal Co., 341 U.S. 114, 119-20, 71 S. Ct. 670, 673 (1951) (Reed, J., concurring) (temporary Fifth Amendment taking – right to compensation for temporary government occupancy and use of a private coal mine to avert nationwide coal miners strike – internal citations omitted); Kimball Laundry Co. v. United States, 338 U.S. 1, 3, 69 S. Ct. 1434, 1436-37 (1949) (private owner right to just compensation for temporary government occupancy and use of a private commercial laundry plant and equipment for use “as a laundry for [Army] personnel”); United States v. General Motors Corp., 323 U.S. 373, 374-83, 65 S. Ct. 357, 358-61 (1945) (private owner right to just compensation for “temporary [government] occupancy of a portion of a leased building . . . taken from a tenant who [held the property] under a long term lease”); Vaizburd v. United States, 384 F.3d 1278, 1285-87 (Fed. Cir. 2004) (temporary Fifth Amendment taking – right to compensation for consequential cost of removing sand accretion caused by nearby 81 P. 711, 712-13 (1894) (1889 Mont. Const. art. III, § 14 right to “just compensation”

includes the right to compensation for “temporary use and injury” to property by the

condemnor prior to final compensation determination for property to be taken by statutory

condemnation).

¶71 Finally, also for the first time, the Court erroneously suggests, if not outright holds,

that the question of a whether a compensable consequential taking or consequential

damaging has occurred under Article II, Section 29 depends, at least in part, on the

balancing or distinction between “impacts upon private property occasioned by the exercise

of police power” and “the extent of the benefit to the public health, safety, and welfare as

compared to the magnitude of the interference with or impact upon private property rights.”

Opinion, ¶ 24 (citing Mont. Dep’t of Highways v. City of Helena (Highways), 193 Mont.

441, 445-46, 632 P.2d 332, 335-36 (1981) (distinguishing between “a legitimate use of the

police power for which no compensation is required” and a “taking in the constitutional

sense” – emphasis added)). However, the Court’s reasoning manifestly conflates the

inherent government power of eminent domain, as limited by the Fifth Amendment takings

government beach replenishment project); Ridge Line, Inc. v. United States, 346 F.3d 1346, 1354-59 (Fed. Cir. 2003) (temporary Fifth Amendment taking – right to compensation for consequential costs of curative and preventive storm drainage runoff onto adjacent private property). Accord City of Boulder v. Fowler Irrevocable Trust 1992-1, 17 P.3d 797, 802-03, and 805-07 (Colo. 2001) (private property owner right under state constitutional “taken or damaged” provision to compensation for restoration costs regarding damage caused by temporary government occupancy and use of private property as a public construction project staging site – applying Restatement (Second) of Torts § 929 (1979) in state inverse condemnation context).

82 clause and Article II, Section 29, with the substantive due process protections implicit in

the Fourteenth Amendment and Article II, Section 17, of the Montana Constitution.

¶72 The State inherently has broad police power to regulate private conduct and affairs

as provided by law in furtherance of the public health, safety, and welfare. City of Billings

v. Herold, 130 Mont. 138, 141, 296 P.2d 263, 264 (1956); Ruona v. City of Billings, 136

Mont. 554, 557-60, 323 P.2d 29, 30-32 (1958); Cunningham v. NW. Improvement Co., 44

Mont. 180, 206-09, 119 P. 554, 560-61 (1911). The police power of the state and local

governments generally relates to the government power of eminent domain, whether

affirmatively exercised pursuant to the statutory condemnation process or as implicated by

the doctrine of inverse condemnation, only to the extent that the government presumably

does not violate a private property owner’s federal and state constitutional rights to

substantive due process when it affirmatively condemns or otherwise takes or damages

private property for public use. See Murr, __ U.S. at __, 137 S. Ct. at 1942 (noting

government police power to regulate the use of private property “to a certain extent” but

that a regulatory taking of the property will result “if [the] regulation goes too far” – internal

citation omitted). If not, the government action is subject to nullification under the

applicable standard of constitutional review as a violation the owner’s fundamental federal

or state right to substantive due process. See Clark Fork Coal. v. Mont. Dep’t of Nat. Res.

& Conservation, 2021 MT 44, ¶ 48, 403 Mont. 225, 481 P.3d 198 (strict scrutiny standard

of substantive due process review applicable to government action infringing on

fundamental constitutional rights – internal citations omitted); In re S.M., 2017 MT 244,

83 ¶¶ 16-17, 389 Mont. 28, 403 P.3d 324 (substantive due process protection bars substantial

government infringement of fundamental constitutional rights except upon government

showing that the government action is narrowly tailored to further a compelling

government interest – citing Washington v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258,

2268 (1997)); Mont. Cannabis Indus. Ass’n v. State, 2016 MT 44, ¶¶ 21-33, 382 Mont.

256, 368 P.3d 1131 (rational basis standard of substantive due process review applicable

to government exercises of police power that do not infringe fundamental constitutional

rights); Hardy v. Progressive Specialty Ins. Co., 2003 MT 85, ¶¶ 35-45, 315 Mont. 107, 67

P.3d 892 (applying rational basis standard of substantive due process scrutiny to statute

prohibiting “stacking” of motor vehicle liability insurance coverages); Newville v. Dep’t of

Fam. Servs., 267 Mont. 237, 249-52, 883 P.2d 793, 800-02 (1994) (substantive due process

guarantee bars arbitrary government action and thus bars the exercise of government police

power not rationally related to a legitimate government interest – internal citations

omitted); Cole v. City of Memphis, 839 F.3d 530, 537-39 (6th Cir. 2016) (applying

intermediate scrutiny standard of substantive due process review to city police practice of

“sweeping” entertainment district streets of people after-hours); Lutz v. City of York, 899

F.2d 255, 268-70 (3rd Cir. 1990) (applying intermediate scrutiny standard of substantive

due process review to ordinance prohibiting “cruising” on certain major city arterials).35

35 See also Driscoll v. Stapleton, 2020 MT 247, ¶¶ 38-40 and 54-56, 401 Mont. 405, 473 P.3d 386 (Sandefur, J., dissenting) (discussing strict, intermediate or middle-tier, and rational basis standards of substantive due process scrutiny); Hutchins v. District of Columbia, 188 F.3d 531, 563 n.24 (D.C. Cir. 1999) (Rogers, J., dissenting) (noting that “[i]ntermediate scrutiny emerged from [Fourteenth Amendment] equal protection and First Amendment jurisprudence[] but is also appropriate in due process case[s]” – internal citations omitted). 84 ¶73 In contrast, the Fifth Amendment and Article II, Section 29 neither require, nor

implicate, nullification of the government action that results in a taking or damaging of

private property without compensation. The federal and state constitutional remedy for a

de facto taking or damaging of private property for public use is an inverse condemnation

claim for just compensation. Cottonwood, ¶ 20 (internal citations omitted). See also Mont.

Const. art. II, § 29; U.S. Const. amend. V; McTaggart v. Mont. Power Co., 184 Mont. 329,

336, 602 P.2d 992, 997 (1979). See also, e.g., Kafka, ¶¶ 67-69 (in re regulatory taking

analysis – internal citations omitted); Yellowstone Valley Elec. Co-op., Inc. v. Ostermiller,

187 Mont. 8, 13-16, 608 P.2d 491, 494-96 (1980) (holding that statute requiring power line

owners and operators to raise overhead power lines to accommodate moving of structures

and derricks was not so restrictive of private property rights to effect a regulatory taking of

property); Billings Properties, Inc. v. Yellowstone Cty., 144 Mont. 25, 29-36, 394 P.2d 182,

185-88 (1964) (holding that statutory requirement for dedication of park land as a condition

of local government subdivision approval was valid exercise of government police power

in furtherance of public welfare thus satisfying due process rational basis scrutiny without

effecting a taking because state law did not require subdividers to subdivide their land and

that park dedication was thus merely a reasonable police regulation if they choose to do so

– internal citations omitted). Compare Kafka, ¶¶ 126-29, 139, 148-49, and 150-51 (Nelson,

J., dissenting) (distinguishing analytical role of government police power in substantive

due process analysis from regulatory takings analysis – internal citations omitted). Though

now abandoned in Fifth Amendment takings jurisprudence, the conflation of the rational

85 basis standard of substantive due process review with the distinct Fifth Amendment takings

analysis caused, or at least substantially contributed to, the analytical “muddle” that long

plagued the Fifth Amendment regulatory takings analysis from which the Montana

constitutional regulatory takings analysis derived. See Bradley C. Karkkainen, The Police

Power Revisited: Phantom Incorporation and the Roots of the Takings “Muddle,” 90

Minn. L. Rev. 826, 827-913 (2006) (describing Fifth Amendment regulatory taking

jurisprudence as a “doctrinal muddle” lacking “theoretical coherence” in large part due to

historical conflation of Fifth Amendment takings analysis and Fourteenth Amendment

substantive due process limitation on government police power regulation of private

property use). Citing Highways, Ostermiller, and McTaggart in Opinion, ¶ 24, the Court

now similarly muddles our Montana consequential taking or damaging jurisprudence by

conflation with the substantive due process limitation on government police power

regulation of private property use.

¶74 As a threshold matter, Highways, Ostermiller, and McTaggart are all analytically

distinguishable because, unlike here, they involved alleged takings, not an alleged

consequential damaging of private property caused by a nearby public improvement.

Highways arose from a contract dispute between the State and City of Helena over the

allocation of the costs associated with the agreed relocation of certain City utilities from a

city street in conjunction with State designation and improvement of the street as a federal

aid state highway. Highways, 193 Mont. at 442-43, 632 P.2d at 333. The City asserted

that a statute requiring it to pay 25% of the costs incurred in relocation of its utilities from

86 the street to facilitate the federal aid state highway improvement constituted an “exercise

of [state] eminent domain power,” and thus effected state taking of the City’s “private

property” without just compensation in violation of Article II, Section 29. Highways, 193

Mont. at 443-45, 632 P.2d at 334-35. Aside from the City’s apparently unchallenged

fantastical claim that its public utility facilities under the street were “private property,” we

held that the federal aid highway cost allocation statute did not effect a constitutional taking

because the City’s right to place utilities in the street was subject to the State’s statutory

power to assume control of the street for use as a state highway. Highways, 193 Mont. at

447, 632 P.2d at 335-36. See similarly Ostermiller, 187 Mont. at 13-15, 608 P.2d at 494-95

(holding that statute requiring power line operators to raise overhead power lines to

accommodate moving of structures did not effect a taking); McTaggart, 184 Mont. at

333-36, 602 P.2d at 995-97 (holding that statute requiring power utility to relocate power

lines from previously acquired utility easement at its expense upon landowner request

effected a constitutional taking).

¶75 Even to the extent that they ultimately applied essentially correct regulatory taking

analyses, those cases were analytically muddled by our preliminary consideration and

recognition of the subject statutes as valid exercises of the States “police power.” See

Highways, 193 Mont. at 445-47, 632 P.2d at 335-36 (citing Ostermiller and McTaggart);

Ostermiller, 187 Mont. at 10-16, 608 P.2d at 493-96; McTaggart, 184 Mont. at 333-36,

602 P.2d at 995-97. Highways, Ostermiller, and McTaggart are thus further

distinguishable and of no consequence here to the extent that they anomalously conflate

87 the Montana constitutional taking analysis with the rational basis standard of substantive

due process review.

¶76 The erroneous nature of the Court’s resort to comparative analysis of the subject

public improvement as a valid exercise of government police power, Opinion, ¶ 24, is

further evident and contradicted by our correct recognition in Knight-Missoula and

Knight-Billings that the nature or purpose of a taking of private property as a valid exercise

of government police power does not insulate or preclude the de facto condemnor from

liability under Article II, Section 29 to justly compensate the owner for a taking of private

property for public use. See Knight-Missoula, 252 Mont. at 242, 827 P.2d at 1276 (citing

Knight-Billings); Knight-Billings, 197 Mont. at 171, 642 P.2d at 144. See similarly

McTaggart, 184 Mont. at 333-36, 602 P.2d at 995-97 (holding that subject statute was a

valid exercise of police power but nonetheless effected a constitutional taking requiring

just compensation). Thus, the Court’s introduction in Opinion, ¶ 24, of the relative validity

of the subject taking or damaging as an exercise of government police power has no bearing

on whether the government action effected a constitutional taking or damaging requiring

just compensation under Article II, Section 29.

6. Application of Correct Consequential Damaging Elements Here.

¶77 Based on a correct statement of the essential elements of a consequential damaging

inverse condemnation claim (substantial physical damage or interference to or with private

property, caused by the construction or operation of a public improvement or land use,

property damage or interference uncommon to the public or community at large, and actual

88 pecuniary loss), with the causation element determined in accordance with our

Busta-clarified standard encompassing causation-in-fact and, as applicable, reasonable

foreseeability of harm and independent intervening causation, I would hold that there is no

genuine issue of material fact on the Rule 56 record regarding the following facts on the

essential elements of Wittmans’ consequential damaging inverse condemnation claim:

(1) the City of Billings sewer system is a public improvement installed and operating, in

pertinent part, underground adjacent to the Wittmans’ property; (2) the Wittmans sustained

substantial private property damage resulting from the backflow of raw sewage into their

home from the adjacent City sewer main; (3) the City sewer system, as currently designed

and operated, helped produce in a natural and continuous sequence, in conjunction with the

common grease discharge practices of its users, the subject grease accumulation and sewer

main clog, sewage backflow, and property damage at issue, none of which would have

occurred without the system as currently designed and operated; and (4) the subject

property damage or interference is of a type or extent uncommon to the deleterious effect

to which the City sewer system commonly subjects the public or community at large. To

the extent that the City asserts that the chain of sequential causation-in-fact, and resulting

City liability, should be truncated and precluded as a matter of law based on pertinent

public policy considerations, I would further hold, as a threshold matter of law, that

pertinent public policy considerations do not warrant truncation of City liability as a matter

of law in this case because:

(1) it is beyond genuine material dispute on the Rule 56 factual record here that the flushing and accumulation of grease in the City sewer system is a

89 common, inevitable, and thus reasonably foreseeable occurrence attendant with the system as currently designed, built, operated, and regulated by the City;

(2) it is similarly beyond genuine material dispute that sewage backflows and resulting private property damage, similar to what occurred here, occur on average 10-15 times per year as a result of the current non-tortious design, operation, and regulation of the system and the common, and thus reasonably foreseeable, grease discharge practices of system users;

(3) the City has presented no evidence that would support a conclusion that the imposition of liability here, or in a similar case, would substantially increase its costs or liability to such extent to impede or prevent the continued economical provision of a quality sewer system and service to City residents and users; and

(4) under these and similar circumstances, the City and its taxpayers, who are both the collective beneficiaries of the system and those collectively responsible for the undesirable grease flushing that is the precipitating contributing cause of this type of occasional sewage backflow onto private property, are more fairly and readily able to pay, with significantly less hardship than the relatively small number of affected individual private property owners, for the property damage caused by the relatively few number of city sewage backflows that damage private property in the City of Billings each year.

¶78 I thus dissent from the Court’s unprecedented restriction of the fundamental

Montana constitutional right to just compensation for private property consequentially

damaged by public improvements or land uses. The Court’s scattershot construction

further muddles our inverse condemnation jurisprudence and effectively eviscerates and

renders meaningless the broader consequential damaging protection of private property

heretofore guaranteed by the Montana Constitution. In accordance with the foregoing

analysis, I would reverse and remand for further proceedings, namely, for trial to determine

90 the extent of actual pecuniary loss incurred by the Wittmans as a result of the subject raw

sewage backflow into their home.

/S/ DIRK M. SANDEFUR

Justice Ingrid Gustafson joins in the dissenting Opinion of Justice Sandefur.

/S/ INGRID GUSTAFSON