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O'NEILL v. STATE BY DEPT. OF HIGHWAYS

No. 86-290.

732 P.2d 1330 (1987)

Daniel J. O'NEILL, Helen P. O'Neill, Plaintiffs and Appellants, v. STATE of Montana, acting By and Through the DEPARTMENT OF HIGHWAYS of the State of Montana, Defendants and Respondents.

Supreme Court of Montana.

Decided February 19, 1987.

Attorney(s) appearing for the Case

Dunlap & Caughlan, Deirdre Caughlan, Butte, for plaintiffs and appellants.

Stephen F. Garrison, Dept. of Highways, Helena, for defendants and respondents.

GULBRANDSON, Justice.

Daniel and Helen O'Neill appeal a Silver Bow County District Court order granting summary judgment to the defendant State of Montana. The issues on appeal are: (1) whether the District Court erred in refusing to consider an affidavit that appellants submitted at the summary judgment hearing, and (2) whether the District Court properly ruled that there was not a "taking" by the State of a strip of appellants' real property. We affirm.

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