Suit between McDougall and Troy escalates

The City of Troy amended its response to the lawsuit filed by Heather McDougall Dec. 31, filing a counterclaim against McDougall, C.E. Davis and “All Persons Unknown,” seeking fee title to an alley located behind McDougall’s residence in Troy. 

The alley in question is located between Spokane Avenue and Missoula Avenue in Troy, abutting the city’s alley north of First Street. The city claims ownership of the alley based upon “open, notorious, adverse, continuous and uninterrupted use of the alley for a period exceeding five years,” according to the city’s counterclaim. 

The city alleges in the claim that Lincoln County illegally assessed taxes on the property, owned by the city, and then passed title to McDougall improperly.

“From approximately the mid-1980s to date, the city has made open, notorious, exclusive, continuous and uninterrupted use of the alley for ingress, egress, access and installation and maintenance of public utilities, namely electricity and wastewater services,” Troy’s attorney, Clifton Hayden wrote in the counterclaim. “The city perfected prescriptive title to the alley through its open, notorious, adverse, continuous and uninterrupted use of the alley for a period exceeding five years approximately thirty (30) years prior to Plaintiff’s claims.“Beginning in approximately tax year 2003, Lincoln County attempted to assess property taxes upon the alley in violation of 15-6-201(1)(a)(ii) and (iv) MCA. Five years later Lincoln County attempted to take and pass title to Plaintiff at a tax sale for taxes the county imposed upon the tax exempt property of the city, namely the alley.”

The city requested the judge grant clear fee title to the alley or an unencumbered access easement.

“The city should be vested with a clear and unencumbered fee title to the alley, or alternatively, an unencumbered ingress, egress and utility maintenance easement located upon the alley, exclusive of the claims of the plaintiff and third party defendants.”

The second count of the claim alleges McDougall has illegally attempted to close the alley.

“The plaintiff has unlawfully attempted to block and hinder use of the alley,” Hayden wrote. “By the open, notorious, adverse, continuous and uninterrupted use of the alley for a period exceeding five years which began in approximately 1937, both the city and the public have perfected prescriptive easements for the use of the alley. Plaintiff has wrongfully interfered with the city and the public’s use and enjoyment of the easement over the alley.”

The city is seeking relief on the second claim through a vested title to the alley in addition to a judgment voiding any taxes imposed on the property void. Alternatively, the city asked for easement by prescriptive use and an order forever barring the defendants and any heirs, successors or assigns, from enjoining or asserting any claim against the easement.

The counterclaim also requests payment of costs and fees.

The counterclaim is the latest filing in the ongoing lawsuit between the city and McDougall, Troy’s former City Attorney, who filed suit, representing herself, against the city alleging private nuisance, trespass and conversion and requesting $17,500 in damages, plus unspecified attorney costs and fees. The suit also names Silver Spur LLC and its owners, William Warrick and Shelly Warrick, and Lloyd Dean Nelson as defendants. She also asked the court to order the removal of the lines.

According to McDougall’s complaint, the city installed water and sewer service to a property at 113 Spokane Avenue in June, 2015. The property, jointly owned by Nelson and the Warricks, was annexed into the city earlier, with an agreement that the city provide services. McDougall alleges the lines installed to provide service to the property trespass on her property at 111 Spokane Avenue, which borders the Warrick/Nelson property.