WRONGFUL OCCUPATION: MCA 27-1-318 does not prevent pursuit of other claims, but Plaintiffs may not double-recover loss-of-use damages from alleged pollution under wrongful occupation and some other theory such as trespass or nuisance… Molloy.
Plaintiffs, alleging zinc and creosote pollution of groundwater from a tie-treating plant, claim that BNSF violated MCA 27-1-318:
The detriment caused by the wrongful occupation of real property in cases not otherwise provided for in this code is deemed to be the value of the use of the property for the time of such occupation, not exceeding 5 years next preceding the commencement of the action or proceeding to enforce the right to damages, and the costs, if any, of recovering the possession.
BN moves to dismiss Plaintiffs’ wrongful occupation claims, arguing that “in cases not otherwise provided for in this code” means a plaintiff cannot bring a wrongful occupation claim if he has a different, potential cause that addresses the same conduct. Plaintiffs argue that the statute merely defines how damages are calculated when they are not otherwise specified by statute. The MSC has not addressed the phrase; thus it is necessary to attempt to ferret out how it would interpret it.
The plain language of 27-1-318 is clear. When a plaintiff claims wrongful occupation, the measure of damages is governed by 27-1-318 and not some other statute. Martin (Mont. 1981) (27-1-318 governs the measure of damages in wrongful occupations and therefore 27-1-317 (breach of obligation other than contract) is not applicable). The MSC has never employed 27-1-318 to preclude other claims. Nothing in 27-1-318 prevents a plaintiff from making a wrongful occupation claim in addition to other claims that might involve the same conduct. Corporate Air (Mont. 2008) (possible to allege several individual causes based on same injury). Plaintiffs commonly make a wrongful occupation claim alongside nuisance, trespass, and unlawful detainer. Sunburst (Mont. 2007);Kuck (Mont. 2009); GPC (Mont. 1997). For example, a plaintiff may allege nuisance or trespass and, if successful, recover restoration damages or diminution, depending on the circumstances. Sunburst. These damages are designed to redress injury to the property itself. 27-1-318 permits recovery for an additional type of injury — the owner’s inability to use the property on account of the wrongful occupation. However, a plaintiff cannot recover loss-of-use damages under a wrongful occupation theory in addition to the same loss-of-use damages under a different theory, such as trespass or nuisance. French (Mont. 1983) (plaintiffs may recover loss-of-use damages under a trespass claim). To award the same loss-of-use damages under both theories would be impermissible double recovery. Waffle House (US 2002) (“It goes without saying that the courts can and should preclude double recovery by an individual.”); Burk (Mont. 1990).
BN cites cases from the 1st and 6th Judicial Districts which summarily concluded that the plaintiffs could not bring a wrongful occupation claim because they had other claims available. Neither provided any reasoning other than that the plain language of the statute precluded the wrongful occupation claims. That view seems incorrect in light of the principles reflected in MSC decisions. The MSC would likely disagree, too. The plain language of the statute does not bar a wrongful occupation claim if another statutory claim and remedy are available. It simply states that when one makes a wrongful occupation claim the measure of damages is the lost rental value, unless a different statute provides the measure of damages. Again, though, the plaintiffs cannot recover twice for loss of use of their property.
California, SD, ND, and Oklahoma have adopted a similar wrongful-occupation statute, and none of those courts adopted the interpretation BN advances. California, for example, permits a wrongful occupation claim in addition to other claims covering the same conduct, such as trespass or nuisance. Those states apply their wrongful occupation statutes merely as a measure of damages for other claims like trespass or nuisance.
BN’s motion to dismiss Plaintiffs’ wrongful occupation claim is denied. BN also moves to dismiss their unjust enrichment claim; Plaintiffs do not object; the motion is granted.
Graham et al v. BNSF, 40 MFR 153, 1/24/13.
David Slovak, Mark Kovacich, and Tom Lewis (Lewis, Slovak, Kovacich & Marr), Great Falls, for Plaintiffs; Daniel Hoven, William Tietz, and Christy McCann (Browning, Kaleczyc, Berry & Hoven), Helena, for BN.