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Glen and Johanna Wohl successfully sued the city of Missoula for taking their property on South Avenue West without paying for it, but since the Montana Supreme Court ruled in their favor a year ago, they have yet to see a penny.

“I’m just a redneck,” Glen Wohl said. “I believe in government for the people, by the people. I believe in the way government was supposed to be, and it bothers me that it isn’t that way.”

The lead plaintiffs among 17, the Wohls filed suit in 2005 after many conversations over morning coffee. The couple knew one thing was certain.

“It’s going to be messy,” said Glen Wohl.

The small-time builders figured the ordeal could take a year, maybe two, and they estimated it might cost them as much as $30,000.

“Were we naïve,” Johanna Wohl said in an interview last week.

So far, the legal fees have come to nearly $200,000, and the dispute over those costs continues.

Long fought, Wohl v. City of Missoula sets legal precedent when it comes to right-of-way dedication, according to the engineering firm that worked on the reconstruction of South Avenue. According to lawyer Thomas Orr, who represented the plaintiffs, the case also illustrates the resources and stamina required to battle City Hall.

“Most citizens don’t have the wherewithal to fight City Hall, and in those cases, they just get their rights trampled,” Orr said.

***

At first, the Wohls tried to avoid a lawsuit.

The couple had owned property along South Avenue since 1972, and they had surveyed land along the road. So Wohl had questions about the right-of-way even in 1999, when he first learned about the city’s plan to rebuild the thoroughfare.

The project landed on the front burner in 2004, and property owners filled out a questionnaire asking if they wanted on-street parking. The Wohls owned commercial buildings that would have had no parking at all without on-street parking, so they said yes.

“It was a no-brainer. Everybody probably wanted on-street parking,” Glen Wohl said.

The questionnaire, though, didn’t discuss the dimensions of the road, and Wohl’s research of county and surveyor records showed South Avenue had a 60-foot right-of-way. The massive reconstruction project would push beyond that, and Wohl began telling city officials about the problem.

“I met with them in 2004, at least during that whole year off and on, trying to convince them that what they were about to do violated Montana law,” Wohl said.

In February the following year, the administration requested the Missoula City Council’s approval to obtain construction bids, and Wohl made his case at a Public Works Committee meeting. In the 2011 ruling in favor of the plaintiffs, Missoula County District Judge Ed McLean made note of that Feb. 2, 2005 meeting.

“Plaintiff Glen Wohl put the city on notice prior to the beginning of construction … ,” wrote McLean. “Mr. Wohl stated if the city proceeded as planned, he would file a lawsuit.”

After many conversations, the Wohls lawyered up, and Orr sent a couple of letters to the city to try to settle out of court. He wanted to send a third, but after reading one piece of correspondence from the city, Glen Wohl said enough was enough.

The city had sent a letter to Orr making note of all the times Wohl had appealed his tax payments. Montana law allows property owners to appeal real estate assessments, and, Wohl said, “I’ve done it a lot over the years because I have a fair amount of property.”

“You pay your taxes, you just pay them under protest,” Johanna Wohl said.

“I was really offended by that,” Glen Wohl said of the letter.

“Then, he knew it was going to be personal,” Johanna Wohl said.

Surveys and road design in hand, he started knocking on neighbors’ doors along South Avenue, and it didn’t take long for him to make his case to other property owners. Wohl told them he planned to pay for a lawsuit against the city, but he needed their support as joint plaintiffs.

“I needed people in on it, not just me,” Glen Wohl said. “I thought it was very important, the way things were going.”

***

In 2005, the city’s earthmovers dug into people’s yards, and in some cases structures, to rebuild South Avenue complete with on-street parking, nine-foot sidewalks, and other improvements.

The same year, Orr and the Wohls presented a simple case in Missoula County District Court.

Said Glen Wohl: “I can’t exaggerate that, stress that enough. This was an incredibly simple case, and the facts were on our side from the very get-go, tremendously.”

Said Orr: “This wasn’t some sort of esoteric, obscure law.”

Montana law says roads are 60 feet wide unless county commissioners determine otherwise, according to a court document filed by the plaintiffs. And state law also presumes that the plaintiffs’ property boundaries run to the center of South Avenue “unless the contrary is shown in their deeds.”

The city’s survey showed the width of the actual road varied, so the court wanted the parties to address this question: “Who owns the property in excess of the 30 feet from the centerline of South Avenue to the edge of the lot?”

In the most recent judgment on damages, Judge McLean reiterated the answer: “The District Court and the Montana Supreme Court agree that, based on historic surveys and plats recorded in the early 1900s, the portion of South Avenue at issue was dedicated as a 60-foot right-of-way, and land on either side of the 60-foot right-of-way rightfully belongs to adjacent landowners and not the city.”

McLean had elaborated in his 2011 order: “Defendant has failed to establish a legal basis upon which this Court can disregard long established Montana case law. … Despite the fact that Defendant had the legal right of eminent domain, it proceeded to take land belonging to the Plaintiffs and others without compensation, thereby forcing Plaintiffs to litigate to protect their property rights.

“Defendant was aware of Plaintiffs’ claims regarding the properties and proceeded to take the Plaintiff’s property for public use in the face of such knowledge. Public policy demands that the government respect the constitutional rights of the public.”

Orr said he isn’t sure where the city plans to come up with the $151,174.30 in damages, but his clients are still waiting for the city to cut them a check. A list of money owed to landowners in court records tallies the smallest check at $3,004.95 for one of several properties belonging to the Wohls, and the largest at $30,974.10 for a property belonging to the Chilcotes.

“They’ve gone nine years without compensation, and it would seem to me that it’d be reasonable for them to get paid,” Orr said.

***

City chief administrative officer Bruce Bender concedes the plaintiffs presented a simple argument.

The city, on the other hand, was trying to create case law, Bender said. On paper, a road might have one dimension, but on the ground, the actual road might have different measurements, especially if it was created in the early 20th century with imprecise instruments.

As for South Avenue? Historic surveys and plats showed a dedicated right-of-way of 60 feet, but a survey by WGM Group showed the road at one point was wider than 80 feet, according to court documents. So who owned the extra land?

WGM Group explained to the city the body of law in Montana that addressed ownership in those cases was slim, Bender said. He said city officials consulted with legal and surveying experts, and they came to the conclusion the land ought to be the public’s.

That meant the city had room to add a parking lane to the construction project, an economic advantage to landowners on South Avenue, Bender said: “If there was a mistake by the city, it was to not gauge fully the perspective of the adjacent properties that this parking lane was a benefit to them.”

To make its case in court, the city brought a complicated argument involving historic surveys and mistakes, he said. But it lost.

“That complexity of trying to present that case was overwhelming for the courts,” Bender said. “(There was) no case law in Montana that helped define it. We were kind of breaking ground, and whenever you’re doing that, that’s difficult.”

The city, then, fought the uphill battle all the way to the Montana Supreme Court knowing taxpayers might have to pick up the tab for legal fees. Bender, though, said the city didn’t want to waste taxpayer money paying for land that should have been considered part of the public right-of-way anyway.

“If we had won, we would have set precedent that excess land is the public’s, and isn’t that worth the risk?” Bender said.

***

The city of Missoula will appeal Orr’s legal fees to take the case to the Montana Supreme Court, Bender said.

As he sees it, the legal ordeal means a $1 million project ends up costing around $1.3 million, and the additional money will come out of the city’s cash balance.

“It was worth it from our perspective to take that risk,” Bender said.

A win would have benefited state, county and city governments working on road projects across Montana, he said. And WGM Group’s Brent Campbell said the outcome has implications for future work.

“I think there’s important case law being established about underlying ownership of land, that it reverts to the private sector and not the public sector,” said Campbell, firm president.

In a prepared statement, he also said the traveling public has reaped the rewards of the new road for years as the court sorted out the ownership, and adjacent landowners also “benefited significantly” from the parking lane.

“Had the city not believed this was (right-of-way), it is doubtful the city would have constructed those parking lanes or incurred the additional (right-of-way) cost,” Campbell said in the statement.

According to Orr, the city could have pursued a legal claim against WGM Group, but it didn’t take the opportunity. Court records show WGM’s surveyor testified he believed the land belonged in the right-of-way given historic records.

Bender, though, said WGM’s survey wasn’t flawed, so the city couldn’t make a case against it.

In the statement, Campbell said WGM stands by its survey, and it didn’t render legal advice: “The Supreme Court ruling is now the law of the land and sets important and difficult precedence for us in future survey work.

“In the end, we did our job well and the courts sorted out a complicated ownership and (right-of-way) issue, as is their purpose.”

***

Eventually, the Wohls and other plaintiffs will be paid, but it’s not all good news, Glen Wohl said.

“I have a real sadness for the taxpayers now that have to step up and pay for these people’s mistakes,” he said.

Taxpayers footed the bill for the salaries of city officials who worked on the project that took away their land, he said, and they’ll pay for the plaintiffs to defend themselves against the illegal taking. Wohl wants resignations, but he said he knows they won’t take place.

“They should realize how valuable constitutional rights are to people,” he said.

According to court documents filed by Orr, the city’s legal arguments were more of “a jumble” than groundbreaking, and the case was punctuated with at least one odd procedure. A decade after WGM surveyed South Avenue and the week before trial, the firm and city filed an affidavit amending the original survey at the direction of the mayor; the surveyor and Mayor John Engen both signed the document, which notes an “oversight.”

The affidavit clarified the 1999 survey, Bender said. Orr said the legality of the survey didn’t come up at trial, and in court documents, he himself argued the survey was irrelevant to the question of property ownership.

Orr has been asked to represent other clients in similar cases, and he gives them a piece of advice before they proceed.

“Get ready for a very, very long, difficult slog,” he said.

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Reach Keila Szpaller at @keilaszpaller, at keila.szpaller@missoulian.com or at (406) 523-5262.

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