NO, 83-487 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

JERRY L. SMITH and VICKI E. SMITH, 

Plaintiffs and Appellants, 

THE PAVALLI COUNTY BOARD OF HEALTH, 

DO3 MULLIN and JAY SACKS, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Richard A. Weber, Jr., Hamilton, Montana 

For Respondents: 

Robert Brown, County Attorney, Hamilton, Montana 

Eoone, Karlberg & Haddon; Randy Cox, Missoula, Montana 

Garlington, Lohn & Robinson, Missoula, Montana 

- --.-- 

Submitted on Briefs: January 24, 1984 

Decided: April 19, 1984 

Filed: 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This case arose out of a dispute between adjacent 

I-andowners in Raval-li Countv. Appellants objected to the 

installation of a septic tank and drain field on property 

owned by respondent Jay Sacks. The District Court denied 

a-ppellants ' request for a preliminary injunction and from 

this order appeal is taken. We affirm. 

In the Spring of 1983, respondent Jay Sacks applied to 

the Ravalli County Health Department for a. permit to construct a septic tank and drain field on real property owned 

by him in the Three Mile area of Ravall-i County. In early 

April of 1983, respondent Don Mullin, the Ravalli County 

Sanitarian, made an on site inspection to determine the 

seasonal high groundwater level. This test was done to 

assure compliance with regulations promulgated by the Ravalli 

County Board of Health. These regulations require a separation of fifty-four inches between the seasonal high groundwater level and the undisturbed ground surface before a septic 

tank system may be installed. A test hole six feet deep was 

dug on the Sacks' property and no water was found. Mullin 

did find a layer of discoloration at fifty-seven inches below 

the surface, which he testified indicated the seasonal high 

groundwater level. He further testified that this was a 

stand.ard method of determining the groundwater level. Based 

on this test, Mullin issued an information card which allowed 

Sacks to receive a permit to install the septic tank system. 

The permit was issued on June 24, 1983, and construction of 

the system began. 

In mid-June appellants noticed an unusual taste in 

their water. Also at that time, an irrigation ditch 
overflowed partially flooding their property. These events 

caused appellants to be concerned about Sacks1 installation 

of the septic tank system. Their concerns were expressed to 

the Ravalli County Eoard of Health and to the Sacks themselves. The septic tank system was moved from the proposed 

site to a location further from appellants1 well as a result 

of discussions between appellants and the Sacks, and despite 

appellants1 continuing objections, construction of the system 

began. 

Between June 27 and June 29, 1983, appellants tested 

the water of several wells in the area for contaminating 

material. The test disclosed that all the wells contained 

coliform bacteria in small amounts, but there was no trace of 

fecal bacteria. This indicated that there was no contamination from septic tanks in the area. At the time of the test 

Sacks' septic tank had not been installed. Fearing that the 

high water level may cause contamination of the well, appellants brought this action to prevent installation of Sacks' 

septic system. 

A temporary restraining order was issued on July 1, 

1983, restraining Sacks from placing his septic system into 

operation for ten days and restraining the Board of Health 

from issuing any more septic system permits in the area. 

During that period of time appellants arranged for two further measurements of the groundwater level. On July 6, 1983, 

Joseph Strasko dug a test hole on the sacks' property to 

determine the groundwater level. Strasko is a registered 

sanitarian employed by the Water Quality Bureau of the Montana Department of Health and Environmental Sciences. 

Strasko determined that the actual groundwater level was 

between fifty-two and fifty-six inches below the surface. 
Dr. William Woessner, Associate Professor in Hydrology at 

the University of Montana, measured the qroundwater level 

through a stand pipe in mid July of 1983. He determined that 

the level was approximately forty-seven and a half inches 

from the surface of the ground. 

The temporary restraining order expired on July 11, 

1983. On July 14 and July 27, 1983, hearings were held on 

appellants' motion for a preliminary injuction. Documentary 

and testimonial evidence was introduced at both hearings, and 

briefs were filed by the parties. On August 12, 1983, the 

District Court denied appellantsr motion finding that they 

had not shown their property would be injured if the injunction did not issue, and if it were injured they have an 

adequate remedy at law through an action for money damages. 

From this ruling, appeal is taken. 

We first note that there essentially were two temporary 

restraining orders issued. The first restrained Sacks from 

placing his septic system into operation and the second 

restrained the Board of Health from issuing permits for any 

septic systems i.n the area of appellants' property. However, 

both were issued for the same purpose, to prevent any possible contamination of appellants' well. Appellants' request 

to convert both to a preliminary injunction was also denied 

for the same reason, that appellants had not shown irreparable harm would occur if the injunctions were not issued. 

Since their denial was based on the same reason, they will be 

treated as one for purposes of our discussion in this 

opinion. 

The allowance of a preliminary injunction is vested in 

the discretion of the District Court, the exercise of which 

the Supreme Court will not interfere with except in instances 
of manifest abuse. Porter v. K and S Partnership (Mont. 

1981), 627 P.2d 836, 38 St.Rep. 648. In reviewing this 

discretion, the question is whether the trial court acted, 

"[Alrbitrarily without the employment of conscientious judgment or exceed led] the bounds of reason, in view of all the 

circumstances, ignoring recognized principles resulting in 

substantial injustice." In Re the Marriage of Jermuson v. 

Jermuson (1979), 181 Mont. 97 at 100, 592 P.2d 491 at 493; 

citing Porter v. Porter (1970), 155 Mont. 451, 473 ~.2d 538. 

Injunctive relief is proper only if: 

"an act has been done or is threatened 

which will produce irrepara.ble injury to 

the party asking for such relief, and 

acts which result in a serious change of, 

or are destructive to, the property 

affected either physically or in the 

character in which it has been held or 

enjoyed, do an irreparable injury. #I 

Madison Fork Ranch v. L and B Lodge Pole Timber Products 

(Mont. 1980), 615 P.2d 900 at 906, 37 St.Rep.1468 at 1474. 

The issue thus becomes whether the District Court a-bused its 

d.iscretion in determining that no irreparable harm would be 

done to appellants' property if the injuction did not issue. 

We find no a.buse of discretion on the facts of this 

case. We have reviewed the record carefully and find no 

evidence that appellants' property will be dams-qed if the 

Sacks' septic system becomes operable. At best appellants 

have only advanced speculation that sewage from the Sacks' 

system would contaminate their well. 

The tests for bacteria showed no evidence of fecal 

bacteria in either appellants' or any other wells, indicating 

that no sewage was leaking into their well. The unusual. 

taste of appellants' water could have come from other bacteria in the soil which the tests proved were present. Even if 
there had been fecal bacteria in the water, it would have 

provided no conclusive answer since the Sacks' system had 

never operated before the test samples were taken. 

The majority of appellants' case below was spent trying 

to prove that the seasonal high groundwater level was above 

the fifty-four inch level required by county regulations. 

The testimony on the groundwater level was mixed, and it was 

clearly within the trial court's discretion to find that the 

regulations had been complied with. Two experts testified 

that the groundwater level was below fifty-four inches, and 

one testified that it was above fifty-four inches. The trial 

court obviously thought the former testimony more credible, 

and it was within its discretion to do so. In addition to 

this, the system was over 180 feet horizontally from appellants' well, where the county regulations only require a 100 

foot separation. Even if the regulations had not been complied with, it wou1.d not mean that as a matter of course the 

Sacks' septic system would contaminate appellants' well. 

Numerous variables would bear on this, including the direction of groundwater flow and the horizontal separation between the septic system and well. In sum, no connection was 

made between Sacks' septic system and appellants' well. 

The District Court is affirmed. 
We concur: 

q& 4. (VN& ChiefQ Justice