FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  November 21, 2007
                            FOR THE TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court


    STEVE MCINTYRE;
    KIMBERLY MCINTYRE,

                Plaintiffs-Appellants,

    v.                                                   No. 07-1181
                                               (D.C. No. 06-cv-401-REB-PAC)
    BOARD OF COUNTY                                       (D. Colo.)
    COMMISSIONERS OF THE
    COUNTY OF GUNNISON,
    COLORADO,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and ANDERSON, Circuit Judges.



         Steve and Kimberly McIntyre appeal from the district court’s order

dismissing their claims against defendant Board of County Commissioners of the




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
County of Gunnison, Colorado (the County). We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.

                                     I. Background

       This case arises out of a dispute over title to a trail in Gunnison County, a

portion of which crossed the McIntyres’ property. In 1998, the McIntyres erected

a gate in an attempt to block public access to the trail. The County believed that

the trail was a public trail and instituted a quiet-title action in state court to

establish the public’s right to use the trail.

       A. The State Proceedings

       After filing its quiet-title complaint in state court, the County obtained a

temporary restraining order on June 26, 1998, which prohibited the McIntyres

from excluding the public from using the trail. The temporary restraining order

was replaced by a preliminary injunction in June 1999. In December of that year,

the McIntyres filed an answer to the County’s complaint and asserted several

counterclaims, including a claim for inverse condemnation. In March 2000, the

state court quieted title in favor of the County and made the injunction permanent.

An amended final decree was entered on February 12, 2002. The McIntyres

appealed, and the Colorado Court of Appeals affirmed. In March 2004, the

Colorado Supreme Court reversed the judgment and remanded the case back to

the state district court.




                                            -2-
      On May 3, 2004, the state district court held a hearing to discuss the status

of the case. The parties agreed to a bifurcated disposition of the County’s

quiet-title claim and the McIntyres’ inverse condemnation counterclaim. The

quiet-title claim was to be set for trial and then, if necessary, the counterclaim

would be tried after the quiet title claim was resolved. The court also left in place

the injunction that had been instituted earlier in the case pending further briefing

by the parties. On May 8, the McIntyres filed a motion requesting permission to

withdraw their counterclaim for inverse condemnation. On June 17, the court

entered an order granting the McIntyres’ motion to dismiss their counterclaim and

notifying them that they needed to elect for dismissal to be with prejudice or

without prejudice. The order also dissolved the injunction. On June 18, the

County filed for emergency relief to keep the injunction intact. The court granted

the motion on June 21 and reinstated the injunction. On June 30, the McIntyres

filed a notice asking the court to dismiss their inverse condemnation counterclaim

without prejudice. The injunction was finally dissolved on July 17. The court

ultimately entered a final quiet-title decree in favor of the McIntyres on May 25,

2005. The County appealed, and the Colorado Court of Appeals affirmed. The

County filed a petition for certiorari with the Colorado Supreme Court, which was

denied on August 13, 2007.




                                          -3-
      B. The Federal Proceedings

      The McIntyres filed a complaint in federal court on March 7, 2006, which

asserted a claim for inverse condemnation under the Colorado Constitution and

claims under 42 U.S.C. § 1983 for violations of their substantive and procedural

due process rights. The County filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss

all of the McIntyres’ claims, arguing that the inverse condemnation claim was

barred by the statute of limitations and the due process claims failed to state a

claim upon which relief could be granted. The district court granted the County’s

motion thereby dismissing all of the McIntyres’ claims. At the same time, the

district court denied the McIntyres’ motion for partial summary judgment on their

inverse condemnation claim. The McIntyres appeal from the district court’s

decision to dismiss their inverse condemnation claim, but they do not challenge

the dismissal of their due process claims.

                                   II. Discussion

      The district court granted the County’s motion to dismiss on the inverse

condemnation claim and denied the McIntyres’ motion for partial summary

judgment on that claim because it concluded that the McIntyres’ claim was

time-barred. Because it was considering both a motion to dismiss and a motion

for summary judgment, the McIntyres assert that the district court appeared to

rely on facts outside of the complaint and that therefore the summary judgment

standard of review should apply. Here, as the McIntyres indicated in their motion

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for partial summary judgment, “[t]he parties agree on what happened. What the

parties’ dispute is what these events legally mean.” Aplt. App. at 101; see also

As a result, there is no need to review this case using the typical

standard for a motion to dismiss or a motion for summary judgment. “Because

the parties do not dispute the facts, we have before us a purely legal question, and

thus we review the matter de novo.” Locke v. Saffle, 

, 1270-71

(10th Cir. 2001).

      The McIntyres argue that the district court erred in dismissing their inverse

condemnation claim as barred by the statute of limitations. An inverse

condemnation claim is brought by a landowner against a government defendant

for “the ‘taking’ of private property for public or private use, without

compensation, by a governmental or public entity which has refused to exercise

its eminent domain power.” Fowler Irrevocable Trust 1992-1 v. City of Boulder,

, 802 (Colo. 2001) (en banc) (quotation omitted). Due to the

McIntyres’ status as Arizona residents, this case arises in part under diversity

jurisdiction; Colorado law therefore governs the limitations period and the accrual

rules for the McIntyres’ inverse condemnation claim, Burnham v. Humphrey

Hospitality Reit Trust, Inc., 

, 712 (10th Cir. 2005).




                                          -5-
                                           A.

      The McIntyres do not dispute that actions against any public or

governmental entity must be brought within two years after the cause of action

accrues, see Colo. Rev. Stat § 13-80-102(1)(h); see also Bad Boys of Cripple

Creek Mining Co. v. City of Cripple Creek, 

, 795 (Colo. Ct. App.

2000) (holding that § 13-80-102(1)(h) applies to inverse condemnation claims).

The dispute in this case concerns when the McIntyres’ claim accrued. The

County asserts that the McIntyres’ claim accrued on June 26, 1998, the date the

state court first entered its temporary restraining order, which prevented the

McIntyres from excluding the public from using the trail. The McIntyres’

position is that their claim did not accrue until the state court’s final quiet-title

decree on May 25, 2005, which established that they actually owned the trail.

The McIntyres argue that their claim could not have accrued and the statute of

limitations could not have begun running until they knew that they owned the

trail. We disagree.

      According to Colo. Rev. Stat. § 13-80-108(1), a cause of action for injury

to property “accrue[s] on the date both the injury and its cause are known or

should have been known by the exercise of reasonable diligence.” We agree with

the County that the McIntyres knew the date of their injury and its cause on

June 26, 1998, when the state court granted the County’s request for an

injunction. After that date, the McIntyres were unable to prevent the public from

                                           -6-
accessing the trail that crossed their land, and the County did not compensate

them for this alleged taking. The McIntyres’ pleadings in state court are

consistent with the County’s accrual position. The McIntyres timely filed an

inverse condemnation counterclaim in state court in December 1999, which was

within two years of the June 1998 accrual date. That claim stated:

      In the event that this Court does not declare a public highway that
      includes any portion of the McIntyre parcels then Gunnison County
      and U.S. Forest Service have taken the McIntyres’ property without
      just compensation in violation of the Fifth and Fourteenth
      Amendments to the United States Constitution, Section 15 of Article
      II of the Colorado Constitution and, with respect to Gunnison
      County, C.R.S. §§ 38-1-101, et seq., and are therefore obligated to
      provide compensation to the McIntyres for the temporary takings of
      their property, which began June 28th, 1998.

Aplt. App. at 85 ¶57 (emphasis added). The McIntyres’ state-court counterclaim

indicates that they knew as of June 28, 1998, that they had been injured by the

County’s actions.

      On appeal, the McIntyres agree that the accrual language from

§ 13-80-108(1) applies, see Aplt. Br. at 15, but they impose an additional

requirement that is not reflected in the statutory language. They rely on Flatiron

Paving Co. v. Great Southwest Fire Insurance Co., 

, 670 (Colo. Ct.

App. 1990), for the proposition that “[b]efore a statute of limitations begins to

run, a plaintiff must be able to maintain a cause of action,” Aplt. Br. at 15.

Applying this principle, the McIntyres assert that before their claim could accrue

they needed to be able to establish that they had a property interest in the trail,

                                          -7-
which is one of the elements for maintaining an inverse condemnation claim.

They contend that it was not possible to establish their property interest until the

quiet-title suit with the County was resolved. The Flatiron case and its progeny,

Daugherty v. Allstate Insurance Co., 

(Colo. Ct. App. 2002), however,

do not accurately reflect the current state of Colorado law regarding claim

accrual. As the Colorado Supreme Court recently explained:

      Although the Daugherty court analyzed the accrual issue using
      section 13-80-108(1), it also incorrectly cites case law regarding the
      determination of accrual that predates the General Assembly’s
      adoption of section 13-80-108. Specifically, Petitioner relies on the
      statement in Daugherty that “[t]he procedure to be utilized in
      determining when a cause of action accrues is to ascertain when
      litigation could first have been successfully maintained.” 

      (citing Flatiron Paving Co. v. Great Sw. Fire Ins. Co., 

,
      670 (Colo. App. 1990)). In turn, Flatiron relied on a court of
      appeals’ decision from 1975, Tucker v. Claimants in Death of
      Gonzales, 

, 

(1975). However,
      Flatiron and Daugherty should not have quoted Tucker, as its rule for
      determining the date of accrual was replaced by the General
      Assembly’s adoption of a specific statute governing determination of
      accrual, section 13-80-108, in 1986. The current version of section
      13-80-108 governs our determination of accrual here.

Brodeur v. Am. Home Assurance Co., 

, 

, at *18

n.10 (Colo. Oct. 9, 2007) (en banc).

      As Brodeur illustrates, the only relevant inquiry for claim accrual is

contained in § 13-80-108(1), which states that a cause of action for injury to

property “accrue[s] on the date both the injury and its cause are known or should

have been known by the exercise of reasonable diligence.” Accordingly, the


                                          -8-
ownership dispute with the County did not impact the accrual of the McIntyres’

claim because the McIntyres did not need to establish all of the elements of their

inverse condemnation claim before their claim accrued. The McIntyres believed

that they had a property interest in the trail as evidenced by their answer and

counterclaim in the state-court quiet-title action. Their pleading in state court

also demonstrates that they thought they could properly file an inverse

condemnation claim, even though the ownership of the property was disputed.

Once the County’s request for a temporary restraining order was granted on

June 26, 1998, and the McIntyres could no longer prevent public access to the

trail, they knew they were injured, and they knew the cause of that injury.

      The McIntyres contend that Doyle v. Linn, 

, 259 (Colo. Ct.

App. 1975), supports their position, arguing that Doyle establishes that title

ownership must first be determined before a dependent cause of action accrues.

The McIntyres misinterpret Doyle, which actually supports the County’s position.

In Doyle, the plaintiffs built their house on government property because of an

apparently incorrect survey performed by a private individual. In 1965, the

government performed its own survey purportedly showing that the plaintiffs’

house was on government land. The government then sued the plaintiffs for

trespass, and the judgment in its favor was affirmed on appeal in 1972. The

plaintiffs then moved their house onto their own land. In 1973, the plaintiffs filed




                                          -9-
a negligence action against the private individual who had performed the incorrect

survey.

      The state court dismissed the plaintiffs’ negligence action, concluding that

the six-year statute of limitations began to run in 1965, “the date of the notice to

the Doyles of the government’s claim.” 

The court of appeals

reversed, noting “[a]lthough knowledge of the government’s hostile claim started

the running of the statute of limitations against any claim for relief which the

Doyles might have had against the government, we are here concerned only with

the question of when the claim for relief against [the private surveyor], on

negligence, arose.” 

Because the suit was a negligence

action against the private surveyor and the damages resulted from plaintiffs

having to move their house after they were found to be trespassers, the court

concluded the negligence claim could not accrue until the trespass claim by the

government was determined to be valid. 

McIntyres are suing the

County, the governmental entity that made a hostile claim to their land, and there

is no third-party negligence claim that was dependent on a determination of the

property rights as between the McIntyres and the County. Accordingly,

consistent with Doyle, the statute of limitations began to run on the McIntyres’

claim against the County when they became aware of the County’s quiet-title

action in June 1998.




                                         -10-
      In a related argument, the McIntyres assert that their claim could not have

accrued in June of 1998 because takings do not accrue at the start of a physical

invasion where the public use starts under a claim of right, relying on Hayden v.

Board of County Commissioners, 

, 834 (Colo. Ct. App. 1978).

In Hayden, the plaintiffs initially granted the defendant a temporary easement

over their property starting in January 1968 in order to detour a portion of a road

during a construction project. The easement was set to expire after the

completion of the road construction or January 17, 1969, whichever first

occurred. Ultimately, the defendant decided to permanently route the road over

the plaintiffs’ property. The plaintiffs filed an inverse condemnation action in

April 1974, which the defendant argued was time-barred. The defendant argued

that the plaintiffs’ claim accrued in February 1968 when the defendant entered the

plaintiffs’ property to begin construction of the temporary road. The court of

appeals disagreed, concluding that when “[defendant] entered upon plaintiffs’

property in February 1968, they did so under a claim of right, i.e., the temporary

easement . . . . Consequently, the earliest date upon which this action could have

been maintained was January 17, 1969, when the easement expired, and the intent

to appropriate this property became clear.” 

argue that the Hayden case supports their position that their

takings claim did not accrue in June 1998 when the public gained access to the

trail “[b]ecause the state court initially determined the County had a right to

                                         -11-
control the Trail, the public use started under a claim of right.” Aplt. Br. at 20.

Hayden does not support their position. In Hayden, unlike this case, the plaintiffs

initially gave permission to the defendant to come onto their property by granting

it a temporary easement. At no time did the McIntyres give permission to the

County to use the trail. In Hayden, after the temporary easement expired and the

defendant did not leave the property, the claim became hostile, and the statute of

limitations began running. The temporary restraining order entered by the state

court in this case did not give the County a claim of right to use the property

because the merits of the quiet-title action continued to be contested while the

injunctive relief was temporarily in place. The County’s use of the property was

hostile and disputed starting in June 1998 when it filed its quiet-title action.

Hayden is consistent with Doyle in holding that a takings claim accrues when a

plaintiff knows of the hostile claim by the governmental entity.

      Finally, the McIntyres attempt to analogize their inverse condemnation

claim to a temporary and/or regulatory taking, and they argue that with these

types of takings there must be a final determination of the affected property




                                          -12-
interests before the claim can accrue. 1 The district court’s order thoroughly

addressed this argument and determined that:

      It is clear that plaintiffs here allege a physical, as opposed to a
      regulatory taking, albeit one of limited duration. They, therefore,
      cannot, simply by characterizing their inverse condemnation claim as
      involving a “temporary taking,” reap the benefit of jurisprudence
      regarding temporary regulatory takings. More importantly, none of
      the authority on which plaintiffs rely stands for the proposition for
      which plaintiffs seek to invoke it. Although the
      permanent/temporary distinction is important for purposes of what
      compensation is due, whether a physical taking is permanent or
      temporary is irrelevant to the application of the statute of limitations
      because the accrual date is the same for both. Under either rubric,
      the limitations period begins to run at the time of the taking.

Aplt. App. at 232-233 (internal quotations, footnotes, brackets, and citations

omitted). The district court correctly concluded that the McIntyres’ claim

accrued on June 26, 1998, and that therefore their inverse condemnation claim

filed on March 7, 2006 was time-barred.




1
       The McIntyres also argue that takings claims do not accrue at the start of
public use where a sequence of events effects the takings. They assert that there
were five times over the course of the state proceedings when injunctive relief
was granted and that these distinct events each constituted a new and separate
taking, which triggered a new limitations period. See Aplt. Br. at 27-28. The
McIntyres did not raise this issue in the district court. In count one of their
complaint, they alleged that there was one uninterrupted “physical invasion . . .
from June 26, 1998 through July 19, 2004 [that] effected a physical taking . . . .”
Aplt. App. at 22. Moreover, the McIntyres did not raise this argument in their
response to the County’s motion to dismiss or in their motion for partial summary
judgment. We see no reason to depart from our general rule that we will not
consider an issue that was not raised in the district court. See Walker v. Mather
(In re Walker), 

, 896 (10th Cir. 1992).

                                        -13-
                                          B.

      The McIntyres argue that the federal district court’s decision to dismiss

their inverse condemnation claim as time barred conflicts with a ruling by the

state district court in the quiet-title proceedings. They contend that the state court

ruled that their inverse condemnation claim was not ripe for adjudication on

May 3, 2004, and that the federal district court needed to accord this ruling “‘full

faith and credit,’” Aplt. Br. at 28-29. 2 We find this argument to be without merit

because the McIntyres have misrepresented the nature of the state court

proceedings– there was no ruling by the state court on the ripeness of the

McIntyre’s inverse condemnation counterclaim.

      On May 3, 2004, the parties participated in a status conference. During the

conference, the court asked the parties to indicate how many days they thought

the trial would last on the County’s quiet-title claim. Aplt. App. at 150:12-23.

The court also asked the parties to indicate how much time during the trial would

need to be dedicated to the McIntyres’ counterclaims. 

At that

point, the County suggested that the McIntyres’ counterclaims would not need to

be litigated if the County were to prevail on its quiet-title claim and that perhaps

the counterclaims should be bifurcated. 

The court asked

2
       The McIntyres also contend that the interests of justice should outweigh the
application of the statute of limitations to their inverse condemnation claim or,
alternatively, that they had no adequate state procedures. These are additional
arguments that were not raised in the district court and are therefore waived. See

.

                                         -14-
Ms. McIntyre, who is an attorney and was representing the plaintiffs pro se, what

her thoughts were about bifurcating the trial and resolving the quiet-title claim

first, and she stated that she agreed with the proposal to bifurcate. 

There was no discussion at any time during the hearing regarding the ripeness of

the McIntyres’ inverse condemnation counterclaim, nor was there any oral ruling

on that issue. The court’s decision to bifurcate the claims based on the agreement

of the parties is not the same as ruling that the McIntyres’ claims were not ripe.

At the conclusion of the hearing, the court set a trial date on the quiet-title claim

and then indicated that, if it ruled on summary judgment prior to that time, then

those days could be used for the McIntyres’ counterclaims. 

The

court did not at any point indicate that the counterclaims were not ripe, but

instead expressed an intention to try the counterclaims at a later date.

      On May 5, 2004, the court issued a minute order, which reflected what had

occurred at the status conference. There is no ruling in the minute order

regarding the ripeness of the McIntyres’ inverse condemnation counterclaim. See

On May 8, 2004, as discussed above, the McIntyres filed a motion

to withdraw their inverse condemnation claim, stating that they wanted to refile

the claim as a separate action at a later date. 

The state court granted

the motion to dismiss, but ordered the McIntyres to notify the court if the

dismissal was to be with or without prejudice. 

On June 30, the

McIntyres filed a notice asking the court to dismiss their inverse condemnation

                                          -15-
claim without prejudice. 

The McIntyres argue that “[h]ad the state

court believed the takings claim accrued in 1998, and so a future filing would be

time-barred, it would have dismissed [the claim] with prejudice or denied the

request.” Aplt. Br. at 31. The McIntyres did not ask the state court for any

substantive ruling on when their inverse condemnation claim accrued and whether

they would be time-barred from filing that claim in the future; they simply filed a

motion to withdraw the claim. There is no substantive ruling that can be inferred

from the state court’s granting of the McIntyres’ motion to voluntarily dismiss

their claim. The McIntyres’ decision to dismiss their claim was a decision they

made on their own. Although the decision to voluntarily dismiss now appears to

have been a significant strategic error because their state-court

inverse-condemnation claim was timely filed, the McIntyres’ cannot hold the state

court responsible for their mistake.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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