Opinion
No. 8,243.
Submitted November 18, 1941.
Decided December 3, 1941.
Cities and Towns — Street Improvements — Raising Level of Street — Flooding of Private Property — Action for Damages — Statutes of Limitation — Constitutional Law. 1. Held, that an action against a city to recover damages caused by the flooding of plaintiff's city property in consequence of the raising of a street level, based upon section 14, Article III of the Constitution declaring that private property shall not be taken or damaged without just compensation having first been made or paid into court for the owner, is subject to statutes of limitation which affect the remedy rather than the right, as against the contention that such a holding would force the person damaged into an affirmative act to stop the running of such a statute, a proceeding allegedly inconsistent with the right guaranteed by the Constitution.
Appeal from District Court, Hill County; C.B. Ewell, Judge.
Mr. Harry C. Alley and Mr. C.R. Stranahan, for Appellant, submitted a brief; Mr. Alley argued the cause orally.
Mr. Peter M. Rigg, for Respondent, submitted a brief, and argued the cause orally.
The Constitution of Montana and law prohibit the taking of property without due process and just compensation. Article III, section 14 of the Constitution reads as follows: "Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner." Under this constitutional provision it is made mandatory upon the taking of private property that compensation be first made, and if compensation be not made, the taking is unlawful and the taker is considered in all respects a trespasser.
A public corporation or municipal corporation may take private property for public purposes; this will admit of no doubt. Sections 9933 and 9934, Revised Codes, provide for the taking of property by eminent domain. It will be noted that these sections of the code especially provide that damages must be paid before land can be taken for public use. (See sec. 9958.) The city is without power to take private property until and unless payment be first made. The payment is a condition precedent, a just compensation is required. Neither the legislature, executive officers nor municipal corporations can dispense with this constitutional provision. ( Eby v. City of Lewistown, 55 Mont. 113, 173 P. 1163; Flynn v. Beaverhead County, 49 Mont. 347, 141 P. 673.) Therefore it is clear that while at common law private property could be taken for a public use without compensation being first made, this condition was definitely changed by the adoption of the Federal and state Constitutions, and by which provisions the payment is made a condition precedent.
In Less v. City of Butte, 28 Mont. 27, 72 P. 140, 98 Am. St. Rep. 545, the court in discussing Article III, section 14, supra, said: "Section 14, Article III of the Constitution is both mandatory and prohibitory. It is self-executing and requires no legislation to rouse it from dormancy. ( Searle v. City of Lead, 10 South Dak. 312, 73 N.W. 101, 39 L.R.A. 345; Hickman v. City of Kansas, 120 Mo. 110, 25 S.W. 225, 23 L.R.A. 658, 41 Am. St. Rep. 684; Harmon v. City of Omaha, 17 Neb. 548, 23 N.W. 503, 52 Am. Rep. 420." (See, also, Holland v. City of Butte 28 Mont. 34, 72 P. 1103; O'Donnell v. City of Butte, 28 Mont. 35, 72 P. 1103; Hanley v. City of Butte, 28 Mont. 36, 72 P. 1103.)
No statute of limitations runs against a person whose property has been taken without due process and compensation. A person whose property has been taken by a municipal corporation is not forced into an affirmative act to stop the running of any period of limitation, no matter how long the period is between the actual taking and the time when action is taken to recover for the damage. In the case of Eby v. City of Lewistown, supra, the facts set forth that the landowner was barred from maintaining the action, having failed to act within the designated period. The court held the limitations should be stricken from the pleading. The court laid down the rule, and it has never been changed within this state, that the landowner is not forced into any affirmative position to recover for or prohibit the unlawful taking of his private property. This case establishes the rule that no statute of limitations is a bar to recovery. ( Board of Levee Commrs. v. Dancy, 65 Miss. 335, 3 So. 568; Kime v. Cass County, 71 Neb. 677, 99 N.W. 546, 101 N.W. 2, 8 Ann. Cas. 853; Kincaid v. City of Seattle, 74 Wn. 617, 134 P. 504, 135 P. 820.)
By these cases the courts, including this court, have held that no period of limitation runs against the owner of property which has been taken unlawfully for public use. While it is true the legislature has power to fix and establish periods of limitations, including the right to change the periods after a cause of action has accrued so long as the change is reasonable, the legislative body cannot impose any limitation upon a constitutional right. Once a constitutional right is given, it can be changed only by the act of the people themselves.
A constitutional provision cannot be modified, added to, or qualified by the legislature or courts. A constitutional right, such as provided for in Article III, supra, is never barred by a period of limitations. As the supreme court of Mississippi said in Levee Commrs. v. Dancy, supra: "He cannot be required to become an actor under the penalty of losing his property and due compensation for it, if he shall not. * * * The objection that the claim for compensation was not made in time is therefore not maintainable." (See, also, Sweeney v. Montana Cent. Ry. Co., 25 Mont. 543, 65 P. 912; Smith v. City of Butte, 40 Mont. 445, 107 P. 409.)
Plaintiff's alleged cause of action is barred by the provisions of subdivision 3 of section 9031, subdivision 1 of section 9032, subdivisions 1 and 2 of section 9033, and section 9041 of the Revised Codes.
In support of plaintiff's argument that statutes of limitation do not apply in this case because of section 14 of Article III of the Montana Constitution, he places his chief reliance upon the Montana case of Eby v. Lewistown, 55 Mont. 113, 117 P. 1163. However, defendant also invokes that decision in support of the opposite contention. A close examination of the Eby Case reveals that the question involved there was whether or not a provision of our Special Improvement District Law was a statute of limitation. This the court decided in the negative and that the provision of that law was unconstitutional. The defendant city set forth the defense that the plaintiff had not complied with the provisions of the Special Improvement Law now contained in section 5237, Revised Codes, requiring him, within sixty days after the construction contract, to file a notice with the city in what manner and to what extent his property would be damaged by the making of such improvements or his claim for damages shall be waived. The court held that the provisions of the above section of the statute requiring the giving of notice in order to maintain an action for damages was unconstitutional. The city contended that the section was a statute of limitations and that, since it is within the power of the legislature to fix a limit within which an action may be brought upon any kind of claim, the section is not obnoxious to the objection made to it. As to this contention the court stated: "It must be conceded that the legislature is free to enact statutes of limitations because the Constitution does not deny it the power to do so. Such enactments may even be made to apply to causes of action already existing, provided only a reasonable time is fixed by the legislature in which parties may commence actions upon them before the statutory bar may be pleaded. ( Guiterman v. Wishon, 21 Mont. 458, 54 P. 566.) If, however, we keep in mind the nature and object of statutes of limitation, it is apparent that the provision in question cannot be classed as such. The principle upon which statutes of limitation are based is that they are statutes of repose; their object being to suppress stale and fraudulent claims after the evidence of their payment has been lost, or the facts concerning them have become obscure from lapse of time or the defective memory, or death, or removal of witnesses. (25 Cyc. 983; Anaconda Min. Co. v. Saile, 16 Mont. 8, 39 P. 909, 50 Am. St. Rep. 472.) Section 13, supra, does not fix a limit within which the property owner may bring his action, but merely raises a conclusive presumption that he has elected to waive any damage he will suffer by the change of grade, if he fails to ascertain and notify the city authorities of the manner and extent of it. In this it is distinguishable from a statute of limitations, application of which depends upon whether the time within which a particular claim may be enforced by action has expired."
In the case at bar, however, the defendant City of Havre is calling to its defense sections of the law, set forth supra, which none can say are not statutes of limitation. In the case of Flynn v. Beaverhead County, 49 Mont. 347, 141 P. 673, cited by plaintiff, the statutes of limitation were not involved. Neither was any statute of limitations involved in Less v. City of Butte, 28 Mont. 27, 72 P. 140, 98 Am. St. Rep. 545, also cited.
That this court in the Eby Case had in mind the provision of the Special Improvement District Law, referred to heretofore, is clear from the following quotation from the case of Kime v. Cass County, 71 Neb. 677, 99 N.W. 546, 101 N.W. 2, 8 Ann. Cas. 853, which this court approved and from which plaintiff quotes: "We are of opinion that the spirit, if not the letter, of the Constitution, requires that the public, seeking to appropriate private property to its use, should, unless damages have been waived by some affirmative and unequivocal act, take steps of its own motion to ascertain their amount and secure their payment, and that mere passive acquiescence by an individual in the appropriation of property, unaccompanied by any conduct indicative of affirmative assent thereto, should not, unless continued for the statutory period of limitations, be regarded as a waiver of his rights." (See, also, the case of Denney v. City of Everett, 46 Wn. 342, 89 P. 934, 123 Am. St. Rep. 934.) The Constitution of the state of Washington has a provision similar to section 14 of Article III of the Montana Constitution (Washington Constitution, Article I, section 16). The plaintiff calls to his support the Washington case of Kincaid v. City of Seattle, 74 Wn. 617, 134 P. 504, 135 P. 820, which is quoted favorably in Eby v. Lewistown, supra. The action in the Washington case was brought to recover damages done to plaintiff's property by reason of the grading of a street to its full width, the slope of the fill extending over into plaintiff's lots. The city had not obtained the right to do this, by condemnation or otherwise. The claim for damages not having been paid, plaintiff brought action. The court said: "The city is bound to make compensation under a compact no less formal than the Constitution itself, and it cannot defeat this constitutional right by a charter provision or an ordinance, nor can the legislature take it away by any arbitrary requirement, although we may admit that it could, as in all other cases, fix a time within which an action must be brought to recover for damages that have not been first ascertained and paid."
In this case the administrator of the estate of Mary Stranahan brought suit against the City of Havre seeking to recover damages as a consequence of the city raising the street level which resulted in the flooding of her property. The case was tried before a jury and the verdict was in favor of the defendant. From the judgment the plaintiff appealed.
Plaintiff contends that his cause of action was erroneously [1] held to be barred by the statute of limitations. The record discloses that the jury was instructed to hold for the defendant if they found that the action was not brought within five years after completion of the change in grade or within two years after the overflow of water on the land in question; the jury was also instructed on the subject of laches. We have no way of determining upon what ground the jury found for the city.
In regard to the application of the statute of limitations, plaintiff contends that his cause of action arises by virtue of section 14 of Article III of the Montana Constitution, which is as follows: "Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner."
Because the cause of action arises under this constitutional provision, the plaintiff asserts that no statute of limitations runs against it. To do so, the plaintiff argues, would force a person into an affirmative act to stop the running of the statute, which is inconsistent with the rights guaranteed in the Constitution.
For this contention the plaintiff relies upon the case of Eby v. City of Lewistown, 55 Mont. 113, 173 P. 1163, 1165. In that case the facts are quite similar to those here. The city there proceeded to, and did, raise the level of the street and thereby made the abutting premises of the plaintiff lower than the street level. The city, upon being sued, set up the provision of section 13 of Chapter 89 of the Laws of 1913, which required the owner of any property damaged to estimate the damage and file a claim within sixty days, and, if he did not, he waived his right to claim damages. On appeal the question was squarely before this court as to whether this provision was in conflict with section 14, Article III of the Montana Constitution. This court held that the provision was not a statute of repose as is the case of the ordinary statute of limitations but one which affected the right of action, and as such was in conflict with the constitutional right. The distinguishing feature between that case and this is that here we are dealing with an ordinary statute of limitations which affects the remedy only, and the Constitution does not prohibit the legislature from enacting such type of statute. In the Eby Case the court expressly held that the provision there under consideration was one affecting the right rather than the remedy. It said: "In our opinion, the better view is that the giving of the notice is of the essence of the right of action itself, without allegation and proof of which no recovery can be had. ( Dolenty v. Broadwater County, 45 Mont. 261, 122 P. 919.)" The Eby Case made it clear that the legislature had the right to enact statutes of limitation but simply held that the statute there under consideration was not one of limitations.
As to the application of the ordinary statutes of limitation in actions for consequential damage as a result of taking or damaging property for public use, there are cases cited from 29 states in the annotation in 30 A.L.R. 1190. Among those cases are many dealing with the application of statutes of limitation under facts similar to those here. In those cases limitation statutes are applied in many cases where property has been damaged as a consequence of a taking of adjacent property for public use. In none is the statute of limitations declared to be in contravention of the Constitution. Among the more recent cases are the following: Wine v. Commonwealth, 301 Mass. 451, 17 N.E.2d 545, 120 A.L.R. 889; Green v. Grand Trunk Western R. Co., 287 Mich. 29, 282 N.W. 890; and Ivester v. City of Winston-Salem, 215 N.C. 1, 1 S.E.2d 88. There is no controversy here as to whether the court applied the proper statutes of limitation.
The judgment is affirmed.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ERICKSON, ANDERSON and MORRIS concur.