If you can make sense of the Montana Supreme Court's analysis in Letica Land Co. v. Anaconda-Deer Lodge County, No. DA 18-0249 (Feb. 5, 2019), we are all ears, because we sure cannot.
The court concluded that the county's actions in furtherance of its claim to own a road located on Letica's property -- including removing a dirt berm and encouraging the public to use the road -- could not be a taking, only a tort.
The county's defense to the takings claim was "that a temporary physical invasion was done under claim of right and therefore did not amount to a taking of Letica's private property." Slip op. at 4-5.
The court agreed, relying on Langford v. United States, 101 U.S. 341 (1880) for the proposition that "if the government mistakenly asserts the right to use its own property, and the property in fact belongs to another, the true property owner's remedy is in tort and the mistake does not amount to an unconstitutional taking." Slip op. at 5.
The problem is that Langford doesn't support that conclusion, at least not since the passage of the Tucker Act shortly after the case was decided. In that case -- involving the jurisdiction of the Court of Claims (the predecessor to the Court of Federal Claims and the Federal Circuit) -- the Supreme Court held that the Claims Court did not have jurisdiction over takings claims:
It is to be regretted that Congress has made no provision by any general law for ascertaining and paying this just compensation. And we are not called on to decide that when the government, acting by the forms which are sufficient to bind it, recognizes that fact that it is taking private property for public use, the compensation may not be recovered in the Court of Claims. On this point we decide nothing.
Langford, 101 U.S. at 343-44. A few years later, of course, Congress would grant the Claims Court jurisdiction over significant takings claims in the Tucker Act.
For what we think is the correct approach, see the Federal Circuit's recent opinion in Katzin v. United States, No. 16-2636 (Fed. Cir. Nov. 19, 2018), in which the court did not question whether the government's contested claim to own land was actionable as a taking, even though the court ultimately concluded that government's actions in that case were not tantamount to a physical taking. (Check out Judge Newman's dissent for what we think was the correct analysis on the latter question.)
Back to Letica, where the court concluded:
Here, the County acted under a claim of right when it removed the dirt berm. Specifically, the County relied on county records, maps, surveys, and other evidence related to historical use of the road before reaffirming the upper branch. Although the County erroneously relied on the initial petition and this Court subsequently concluded that the public prescriptive easement was extinguished by reverse adverse possession, the County’s actions were reasonable. The County’s conduct was reinforced by the District Court order denying Letica’s request for a preliminary injunction, in which the District Court concluded that the County was likely to succeed on the petition regarding the upper branch.¶14 Pursuant to Langford, the County’s good faith reliance on the petition, and other evidence supporting its petition, preclude Letica’s claim that a taking occurred.
Slip op. at 6.
Sorry, we just don't get this. An allegation of a physical invasion pursuant to an erroneous claim that the government, not a private party, is the owner of the land. Why doesn't that state a claim for a compensable taking, if proven true?
Letica Land Co. v. Anaconda-Deer Lodge County, No. DA 18-0249 (Montana Feb. 5, 2019) by on Scribd
