IN THE SUPREbP COURT OF THE STATE OF PONTAhTA 

,ylARIAN HAUGEN TRUST and 

MARIAN HAUGEN, TRUSTEE, 

Plaintiff and Respondent, 

MAURICE A. WARNER, JR., and 

MARLENE R. WARNER, husband and wife, 

Defendants, Third Party 

Plaintiffs and Appellants, 

LAWRENCE E . WALKER and 

DARLENE E . WALKER, husband 

and wife, JACK HUME and 

MIDDLE CmEK MEADOWS, INC., 

T h i r d P a r t y Defendants 

and Respondents. 

Appeal from: District Court of the Eicshteenth Judicial District, 

In and for the County of Gallatin 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record 

For Appellants: 

Kirwan & Barrett, Bozeman, Montana 

Berg, Coil, Stokes & Tollefsen, Bozeman Montana 

For Respondents: 

Landoee, Brown, Planalp, Kommers & Lineberaer, Bozeman, Montana 

For Third Party Respondents: 

Moore, Rice, O'Connell & Refling. Bozeman, Montana 

Submitted On Briefs: April 21, 1983 

Decided: June 30, 1953 

$ul\j ;, 1983 

Filed: 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

The District Court of the Eighteenth Judicial District 

issued an order September 13, 1982, dismissing an amended 

third party complaint against Jack Hume and Middle Creek 

Meadows. The order also denied third party plaintiffs, 

Warners, leave to again amend their amended third party 

complaint. Warners now appeal from that order. We reverse 

the judgment of the District Court. 

Jack Hume and Middle Creeek Meadows, Inc., third party 

defendants, are the developers of Middle Creek Meadows 

Subdivision in Gallatin County, Montana. The subdivision 

includes three ponds constructed by the developers primarily 

for aesthetic purposes. Pond three is the only one currently 

used for irrigation. 

Plaintiff Haugen, defendants and third party plaintiffs, 

Warners and third party defendants, Walkers own property in 

Middle Creek Meadows Subdivision. 

Warners' basement was damaged by flooding in 1978 and 

1979. They believed the flooding to be caused by leakage of 

water from ponds one and two. In July of 1979, Warners began 

to monitor the relationship between the depth of the water in 

their sump hole and the depth of the water in the ponds. 

After finding a definite correlation, Warners partially 

blocked the flow of water into the ponds during the summers 

of 1979, 1980 and 1981. 

The obstruction of water flow into the ponds allegedly 

caused the water remaining to become stagnant. Mosquitoes 

and other insects began gathering near the ponds. Haugen's 

home is next to one of the ponds. He filed a complaint July 

7, 1981, against Warners for creating a nuisance. FJarners 

filed an answer October 2, 1981. 
In 1982, Walkers asserted a right to the pond water and 

claimed that Warners' obstruction of the flow of water into 

the ponds deprived them of use of the water. On July 8, 

1982, Walkers removed the culvert cap placed by Warners to 

obstruct the flow of water to ponds one and two. Warners' 

basement again flooded. 

On July 9, 1982, Warners filed a third party complaint 

against Walkers, seeking a permanent injunction enjoining and 

restraining Walkers from interfering with Warners' attempt to 

control the flow of waters into the ponds. The third party 

complaint alleged further that Walkers have negligently and 

recklessly constructed, used and maintained the ponds and 

that Walkers' use and maintenance of the ponds have created a 

nuisance. Walkers filed a motion to dismiss on July 14, 

1982. 

A July 19, 1982 District Court order combined the 

actions and set the entire cause for trial on the merits on 

August 26, 1982. 

Warners filed an amended third party complaint August 2, 

1982, adding Jack Hume and Middle Creek Meadows, Inc., as 

third party defendants. Hume and Middle Creek filed a motion 

to dismiss the third party complaint against them on August 

23, 1982, alleging that the action was barred by the statute 

of limitations. The statute of limitations is two years. 

Section 27-2-207, MCA. The complaint was filed in 1982, but 

only alleged damages for the years 1978 and 1979. 

Immediately prior to the September 2, 1982, hearing on 

Hume's and Middle Creek's motion to dismiss, Warners filed, 

without leave of court, a second amended third party 

complaint alleging damages in 1982. Third party defendants' 

motion was granted September 13, 1982, without leave to 

amend. 
Warners now appeal that order. The trial on the merits 

as well as a hearing on a motion for summary judgment have 

been vacated and continued pending resolution of this appeal. 

The issues presented to this Court by Warners are: 

1. Was leave of court necessary to amend the third 

party complaint? 

third 

statute of limitations? 

Are third 

plaintiffs' 

plaintiffs 

action barred 

entitled 

the 

punitive 

damages ? 

Leave of court was required before Warners could file a 

second amended third party complaint. Rule 15(a), 

M.R.Civ.P., states in relevant part: 

"Amendments. A party may amend his pleadings once 

as a matter of course at any time before a 

responsive pleading is served or, if the pleading 

is one to which no responsive pleading is permitted 

and the action has not been placed upon the trial 

calendar, he may so amend it at any time within 20 

days after it is served. Otherwise a party may 

amend his pleading only by leave of court or by 

written consent of the adverse party; and leave 

shall be freely given when justice so requires." 

This rule does not allow one amendment as a matter of course 

per defendant. Rather, it allows one amendment as a matter 

of course per pleading. Any other interpretation would 

violate the purposes for the rule, to prevent poor pleadings 

and to discourage harassment of the defendant. Wright, 

Federal Practice and Procedure, Chapter 4, $1480, p. 405. 

The original third party complaint was amended once, 

prior to any responsive pleadings, to add Jack Hume and 

Middle Creek Meadows, Inc., as third party defendants. Leave 

of court was required before it could be amended again, 

regardless how many of the amendments affected Jack Hume and 

Middle Creek Meadows. 
However, the trial court judge clearly abused his 

discretion when he denied Warners the opportunity to amend 

their third party complaint for the second time. Warners 

failure to allege damages in 1982 was obviously inadvertent. 

Leave of court to amend a complaint in order to correct a 

mistake should be freely given when the amendment will not 

mislead defendants to their prejudice. Besse v. McHenry 

(1931), 89 Mont. 520, 300 P. 199. The amendment presents no 

new cause of action, nor does it mislead third party 

defendants. 

To deny Warners their day in court because of an 

inadvertent mistake is tantamount to denying Warners justice. 

Refusal to permit an amendment to a complaint which should be 

made in furtherance of justice is an abuse of discretion. 

State ex rel. Gold Creek Mining Co. v. District Court (1935), 

99 Mont. 33, 37, 43 P.2d 249, 250. 

Apparently, the trial court judgers reason for denying 

leave to amend the complaint was the supposed futility of the 

amendment. However, the amendment is not futile because 

Warners' action against the third party defendants is not 

barred by the statute of limitations. Even without specific 

allegations of damages in 1982, Warnersr amended third party 

complaint alleges negligence in 1982 - the negligent 

maintenance of the reservoir ponds. Whether that negligence 

caused any recoverable damages is a question of fact to be 

decided at a trial on the merits. 

Jack Hume and Middle Creek Meadows, Inc. allege that the 

statute of limitations should have begun to run in 1978 

because that was when the flooding caused permanent injury. 

" . . . for permanent injury the statute runs from the time 

the injury becomes complete to the land's use and enjoyment." 
Nelson v. C & C Plywood Corp. (1970), 154 Mont. 414, 433, 465 

P.2d 314, 324. 

A permanent injury is one where the situation has 

"stabilized" and. the permanent damage is "reasonably 

certain". Blasdel v. Montana Power Co. (1982), Mont . 

, 640 P.2d 889, 39 St.Rep. 219. The situation in the 

instant case has not stabilized. Warners' basement continues 

to periodically flood, allegedly whenever the ponds are 

allowed to be filled with water from the in-flowing creeks. 

The extent of the damages to the basement varies from 

occurrence to occurren.cle,depending on the level of the water 

in the basement and the condition of the basement at the time 

of each flood. 

Further, the nuisance is apparently abatable, as 

illustrated by the fact that when the water flow from the 

creeks was blocked in 1980 and 1981, the basement did not 

flood. Allegedly, the developers could have abated the 

nuisance themselves through corrective action. That remains 

a determination to be made at trial. If the flooding is 

terminable, it cannot be deemed a permanent nuisance. See 

Harrisonville v. W.S. Dickey Clay Mfg. Co. (1933), 289 U.S. 

334, 53 S.Ct 602, 77 L.Ed. 1208, where the Supreme Court held 

that where the pollution of a creek was terminable, it could 

not be deemed a permanent nuisance from the time the nuisance 

was created. 

The damage is not yet permanent. Therefore, the 

nuisance is of a temporary and continuous character and gives 

rise to a separate cause of action each time it causes 

damage. 39 Am. Jur., Nuisance, $141, p. 403, and quoted in 

Nelson, 154 Mont. at p. 434, 465 P.2d at pp. 324-325. 

The applicable statute of limitations is two years. 

Section 27-2-207, MCA. The Warners may be able to recover 
damages for injuries suffered two years prior to the date of 

their original third party complaint, July 9, 1982, if such 

damages are proven at trial. 

Finally, this Court has no jurisdiction over issue 

number three, whether Warners are entitled to punitive 

damages from Hume and Middle Creek Meadows. The appeal of 

that issue is premature as there has been no trial on actual 

damages. 

The September 13, 1982, order of the District Court is 

reversed and Warners are granted leave to amend their amended 

third party complaint. This matter is remanded to the 

District Court for trial on the merits, consistent with this 

opinion. 

We concur: 

apn-e,~4Q..u~ 

Chief Justice!