Wittman v. City of Billings

Decision Date05 July 2022
Docket NumberDA 20-0609
Citation2022 MT 129
PartiesARIANE WITTMAN and JEREMY TAYLEN, Plaintiffs and Appellants, v. CITY OF BILLINGS, Defendant and Appellee.
CourtMontana Supreme Court

Argued and Submitted: September 10, 2021

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

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


Jim Rice, Justice

¶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?


¶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 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.


¶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).


¶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 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 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 (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...

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  • Hamlin Constr. & Dev. Co. v. Mont. Dep't of Transp.
    • United States
    • Montana Supreme Court
    • October 4, 2022
    ...when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Wittman v. City of Billings , 2022 MT 129, ¶ 5, 409 Mont. 111, 512 P.3d 1209 (citations and internal quotations omitted); Borges v. Missoula Cty. Sheriff's Office , 2018 MT 14......

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