No. 80-208 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

J. 0. BLASDEL and ETHEL BLASDEL, 

Plaintiffs and Respondents, 

THE MONTANA POWER COMPANY, a 

corporation, 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead 

Honorable Robert C. Sykes, Judge presiding. 

Counsel of Record: 

For Appellant: 

Warden, Christiansen & Johnson, Kalispell, Montana 

Merritt N. Warden argued, Kalispell, Montana 

For Respondents: 

McGarvey, Lence & Heberling, Kalispell, Montana 

Jon L. Heberling argued, Kalispell, Montana 

: - . .J , - 1982 

Filed: 

Submitted: October 21, 1981 

Decided: FED 2 1DBI 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

In this inverse condemnation action the defendant, 

Montana Power Company, appeals from a judgment in favor of 

the plaintiffs landowners. 

Plaintiffs-respondents, the Blasdels, filed suit on 

December 1, 1960, against the Montana Power Company for 

inverse condemnation of the Blasdel farm. B1-asdels claim 

that Montana Power Company's construction and operation of 

the Kerr Dam on Flathead Lake caused the water table to rise 

and severely damage their farm. 

Montana's Eleventh Judicial District Court, in and 

for the County of Flathead, bifurcated the issues. In 

February 1979, a two-week nonjury trial found liability and 

a taking without just compensation. In November 1979, a 

two-week jury trial established damages as follows: 

jury verdict 

interest 

$115,448.64 litigation expenses* 

$316,457.02 Total Judgment 

Plus 10% interest from 12/10/79 

*Awarded after a one-day nonjury trial 

On appeal, Montana Power claims the cause is barred 

by prescription and the statute of limitations. It also 

challenges certain findings of fact, conclusions of law, 

admission of certain exhibits, and attorney fees and costs 

awarded to the plaintiffs. 

In 1930 the Federal Power Commission issued a license 

to the predecessor of the Montana Power Company to build 

Kerr Dam located just off the south end of Flathead Lake. 

That dam was completed in 1939, and in 1940 the appellant, 

Montana Power Company, began to operate Kerr Dam. Prior to 

the construction of the dam, the water level in Flathead 
Lake remained at 2883 feet above sea level (FASL), except 

during two months of high water each spring. After the dam 

was constructed in 1939, the water level of Flathead Lake 

remained at 2893 FASL for a period of five months each year 

(May through September) and averaged 5.4 feet higher than 

the predam level. 

The respondents, J. 0. and Ethel Blasdel, first began 

operating the farmland in question in 1928 as tenants. They 

purchased the area involved at three different times. The 

first purchase was made in January 1942, the second in 

December 1945, and the third in 1957. 

The Blasdel farm is located one and one-half miles 

north of Flathead Lake, one-half mile from the Flathead 

River, and one-fourth mile from a slough that is connected 

to the Flathead River. The farm is surrounded on three 

sides by water--to the north and to the east by the Flathead 

River, and to the south by Flathead Lake. The southbound 

Flathead River makes a large turn above the Blasdel farm and 

turns east and parallel to the northern border of the farm. 

The river then turns south, and runs parallel to the eastern 

border of the farm. This entire area of the river remains 

at the same level as Flathead Lake. Therefore, the Blasdel 

farm is surrounded by water that now averages 5.4 feet 

higher than the level of the predam years. 

Prior to the construction of Kerr Dam, and in anticipation of problems that might arise concerning the water 

table rise caused by the dam, the United States Geological 

Survey (USGS) began a study in 1928 entitled, "Effect Upon 

Ground Water Levels Of Proposed Surface Water Storage In 

Flathead Lake, Montana." This report is known as the "Cady 
report" and was issued by the USGS in 1940. References will 

be made to this report herein as it is one of the base 

reports for the findings of fact and conclusions of law 

reached by the trial judge. 

The Cady report predicted that the high water would 

slowly seep through the fine soils of the Blasdel farm and 

that it would take a number of years before the water table 

levels would reach the predicted level of 4.2 feet higher 

than the predam years. Contained in the Cady report were 

studies made from forty observation wells dug by the USGS 

commencing in 1928. These wells were in the vicinity of the 

Blasdel farm, and the recorded information was used to 

gather base line data on water tables for the Kerr Dam 

proposal. 

Testimony and documentary evidence introduced at 

trial indicate the Blasdels first complained of damage to 

their land in 1941. Again in 1948 complaints were made and, 

as a result of complaints in 1957, a letter which was 

introduced at trial from Montana Power's land agent to 

Montana Power's attorney in Kalispell, Montana, noted: "If 

the proof develops strong enough, we may have to change our 

mind about not acknowledging any liability." On December 1, 

1960, the first complaint in this matter was filed. 

In all, five complaints have been filed in this 

action. The first complaint was filed on December 1, 1960, 

and noted that the Blasdels were "deprived . . . of 

unrestricted use for more than five years last past." This 

complaint also noted that the water flooded and remained on 

the lands in 1959 and 1960. The second complaint (the first 

amended complaint) was filed on December 31, 1965, and was 
similar to the first complaint except that it specified that 

134 acres had been completely destroyed and 126 acres 

partially destroyed. The third (second amended) complaint 

was filed on August 9, 1967, and was similar to the second 

complaint. The fourth (third amended) complaint was filed 

on June 25, 1971. For the first time it listed the specific 

date of injury, "1959," and alleged that 104 acres of land 

were completely destroyed and 121 acres were 75% destroyed. 

The complaint again referred to the continuous flooding in 

1959-1960, and for the first time spoke of new damage in 

1959-1960 and "a permanent taking." The final and fifth 

(fourth amended) complaint is similar to the fourth 

complaint filed except that larger amounts of damages were 

requested. The difference between the first and last 

complaints is largely a matter of damages claimed and 

semantics. The first complaint asked for $50,000 in damages 

and referred to flood waters remaining on the farm in 

1959-1960. The last complaint asked for $142,847.89, plus 

interest, in damages and referred to the damage becoming 

permanent in 1959 and 1960. 

The District Court made extensive findings of fact, 

forty-eight in number, and eight conclusions of law. In 

finding of fact no. 37, the court found that the post-dam 

water table at the Blasdel property rose 4.2 feet. Three 

feet of this was due to the Flathead Lake and 1.2 feet was 

due to increased precipitation. Montana Power claims the 

entire increase, if any, was due to increased precipitation. 

Testimony indicates that the water table fluctuated 

until 1960. Although Blasdels first complained of damage in 

1941, there were no problems during dry years such as 1955. 
Consequently, the court found the problems caused by the 

gradually increasing water table were temporary before 1959- 

1960. In 1959-1960, the water table stabilized, and the 

problem became permanent. 

The higher water table damaged the Blasdels in a 

number of ways. First, sloughs that were small or 

nonexistent in the past have significantly increased in 

size. As the sloughs increase in size, the amount of arable 

land decreases, the remaining fields assume irregular 

shapes, and it becomes more difficult to move farm 

machinery. Second, the salt and sodium content of the 

topsoil has increased dramatically. This soil, called 

"tuffitt," is very unproductive, very expensive to treat, 

and can affect adjacent land. Crop yields in the affected 

areas have declined from 33% to 100%. As a result, one of 

the two families that had farmed this land was forced to 

leave in 1960 to seek other employment. Third, in 1956 a 

new spring developed and began flowing across the Blasdel 

farm, saturating even more land. 

Five issues are presented to this Court for review: 

1. Is the plaintiffsf action barred by statute of 

limitations? 

2. Is the plaintiffs' action barred by prescriptive 

easement? 

3. Are the District Court's findings supported by 

substantial evidence? 

4. Did the District Court err in admitting certain 

of the plaintiffs' exhibits? 

5. Did the District Court err in allowing certain 

costs to the plaintiffs? 
I. STATUTE OF LIMITATIONS 

Appellant, Montana Power Company, claims that the 

respondents first complained of the rising water table in 

1941, that the cause of action started running in 1941, and 

that the statute of limitations, therefore, expired long 

before this suit was filed on December 1, 1960. 

Appellant plead in its answer to the fourth amended 

complaint filed on April 27, 1973, as an affirmative 

defense, the three-year statute of limitations on actions 

"upon an obligation or liability, not founded on an 

instrument in writing, other than a contract, account or 

promise" (section 93-2605 (3), R.C .M. 1947, now section 27- 

2-202, MCA); the two-year statute of limitions "for injury 

to or for waste or trespass on real or personal property" 

(section 93-2607(2), R.C.M. 1947, now section 27-2-303, 

MCA); and the five-year statute for all actions not otherwise covered (section 93-2613, R.C.M. 1947, now section 

27-2-215, MCA) . Later, after the respondents admitted that 

the appellant had invaded their land, the appellant filed a 

motion for summary judgment based on the defense of prescriptive easement. 

The appellant cites a number of cases indicating that 

the cause of action started running when the damage first 

accrued. Heckaman v. Northern Pac. Ry. Co. (1933), 93 Mont. 

363, 20 P.2d 258 (cause of action accrued when a railroad 

embankment caused flooding, not when built); Ackerman v. 

Port of Seattle (Wash. 1958), 329 P.2d 210 (action accrued 

when flights started, not when airport was built); United 

States v. Dickinson (4th Cir. 1946), 152 F.2d 865, aff'd., 

331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947) (action 
accrued when flooding occurred, not when the dam was built); 

Castro v. United States (Ct. C1. 1974), 500 F.2d 436 

(statute of limitation did not run until damages so 

manifested themselves that a final account may be struck). 

The appellant concludes that at least sixty acres of the 

land flooded in the 1940s, and, consequently, the statute of 

limitations (whether two, three or five years) expired long 

before 1960. It further argues that this is true even if 

the flooding was intermittent, citing Barnes v. United 

States (Ct. C1. 1976), 538 F.2d 865. In the instant case, 

the damage was temporary pr ior to 1959-1960 and permanent 

after 1959-1960. Therefore, if anything, the above-cited 

cases actually support the respondents' position that the 

cause of action did not start running until 1959-1960. 

The only water table case cited by appellant is 

Korgel v. United States (8th Cir. 1980), 619 F.2d 16. In 

Korqel large amounts of diverted water ran off an airbase 

and raised the water table in 1969 until it flooded the 

plaintiffs' land. However, since the plaintiffs waited 

until 1976 to file suit, the court found the action was 

barred by applicable two-year statute of limitations 

provision. In Korgel, the plaintiffs apparently waited 

until five years after the water table stabilized to file 

suit. Thus, Korgel is not on point. 

At a11 times in the District Court the Montana Power 

Company denied any damage. Therefore, it did not attempt to 

prove a date of permanent injury other than to allege that 

if the cause ripened, if ever it did, it did so in 1941 and 

because the action here was not filed until 1960, the 

statute barred respondents' action. Throughout its proof, 
and to the day of oral argument of this appeal, appellant 

denieu that the water table rose and denied that damage, if 

any, was due to the lake. Therefore, we find few facts on 

appellant's side to sustain its alternative claims of the 

statute of limitation and prescription. Indeed, as we will 

note later in considering the evidence produced here, the 

appellant offered no proof of how much the water table rose 

on the Blasdel farm due to the rise in the lake or when it 

rose. 

The District Court made a final finding of fact that 

respondents ". . . could not with reasonable certainty 

ascertain permanent damage to any substantial portion of the 

[respondents'] land until the growing season 1959-1960." 

This finding is also stated as part of the first conclusion 

of law: "[Substantial damage to the respondents' land] . . . 

could not be reasonably ascertained until the growing season 

1959-1960." On that basis, the court concluded: "Plaintiffs 

filed their complaint within the statute of limitations 

pertaining to a permanent taking." In so ruling, the court 

did not answer the issue of which statute of limitations is 

applicable in an inverse condemnation case of invasion by 

underground seep. To solve this issue we must begin with a 

case of this Court, Hauser v. Toston Irr. Dist. (1977), 172 

kont. 530, 565 P.2d 632. 

In Kauser, this Court held that a rising water table 

is a "taking" or permanent invasion of land which is actionable. However, we have not previously addressed the issue 

of when that cause of action accrues. Paraphrasing Brigham 

Young when qe )arrived in Utah, "This is the time and the 

,L*l ,) \,. CL* -, (%itd> .! 

- case." Eickinson -v. Bd-ted- St-akes (1947), 331 U.S. 745, 67 
S.Ct. 1382, 91 L.Ed. 1789, is helpful: 

"Property is taken in the constitutional 

sense when inroads are made upon an owner's 

use of it to an extent that, as between 

private parties, a servitude has been 

acquired either by agreement or in course of 

time . The Fifth Amendment expresses a 

principle of fairness and not a technical 

rule of procedure enshrining old or new 

niceties regarding 'causes of action1--when 

they are born, whether they proliferate, and 

when they die. We are not now called upon to 

decide whether in a situation like this a 

landowner might be allowed to bring suit as 

soon as inundation threatens. Assuming that 

such an action would be sustained, it is not 

a good enough reason why he must sue then or 

have, from that moment, the statute of 

limitations run against him. If suit must be 

brought, lest he jeopardize his rights, as 

soon as his land is invaded, other 

contingencies would be running against him-- 

for instance, the uncertainty of the damage 

and the risk of res judicata against 

recovering later for damage as yet uncertain. 

The source of the entire claim--the overflow 

due to rises in the level of the river--is 

not a single event; it is continuous. And as 

there is nothing in reason, so there is 

nothing in legal doctrine, to preclude the 

law from meeting such a process by postponing 

suit until the situation becomes stabilized. 

An owner of land flooded by the [defendant] 

would not unnaturally postpone bringing a 

suit against the [defendant] for the flooding 

until the consequences of inundation have so 

manifested themselves that a final account 

may be struck." 331 U.S. at 748-749, 67 

S.Ct. at 1385, 91 L.Ed. at 1794. 

In the instant case, as in Dickinson, Montana Power 

could have admitted liability years earlier and settled the 

claim. Instead, it denied liability. The Blasdels, who 

waited to sue until damages stabilized and became permanent 

should not be penalized. Thus, we hold that the damages 

stabilized in 1959-1960, the cause of action accrued at that 

time, and this action was - not barred by the statute of 

limitations. 

It should also be noted that even though the 

complaint was amended four times, the statute of limitations 
was tolled when the first complaint was filed. Rule 15(c), 

M.R.Civ.P., provides that "whenever the claim . . . asserted 

in the amended pleadings rose out of the conduct, 

transaction, or occurrence set forth or attempted to be set 

forth in the original pleadings, the amendment relates back 

to the date of the original pleadings." 

Further, when a new theory of liability is based on 

the same facts as those brought to the attention of the 

opposite party by a previous complaint, no prejudice is 

worked by allowing the amendment. Rierson v. State (1980), 

- Mont. - , 614 P.2d 1020, 37 St.Rep. 627; cf., Vincent 

v. Edwards (1979), - Mont. - , 601 P.2d 1184, 36 St.Rep. 

1886. In the instant case, the basic facts were all 

presented in the first complaint. Consequently, we hold 

that the amendments relate back to the original complaint. 

11. PRESCRIPTIVE EASEMENT 

Is the plaintiffs' action barred by prescriptive 

easement? 

The party asserting a prescriptive easement must show 

(1) open, (2) notorious, (3) exclusive, (4) adverse, (5) 

continuous, and (6) uninterrupted use of an easement claimed 

for the full statutory period. Taylor v. Petranek (1977), 

173 Mont. 433, 437, 568 P.2d 120, 122. Occupancy for a 

five-year period must also be shown. Sections 70-19-404 and 

70-19-405, MCA. 

Montant Power put all its eggs in one basket labeled 

"a denial of proximate cause." Here, appellant did not 

prove "open and notorious" occupation of the Blasdel land 

for any period of time; it did not prove the date when it 
first "occupied" the Blasdel land; it did not prove a date 

when the lake influence became dominant; and it has 

consistently denied occupation of the land. Upon this 

record, the appellant failed to prove facts necessary to 

establish the elements of prescription. 

We should also note that no intention to occupy the 

land has been shown. Montana Power has never claimed any 

right, title or interest in the Blasdel property. Intention 

is a central element of (1) prescriptive easements and (2) 

adverse possession. ,Consequently, appellant has failed to 

; -, ,-1&5 

prove either claim. SeeIbr~amme Mebson (1883). 4 Mont. 

560, 2 P. 298; Blackfoot Land Development Co. v. Burks 

(1921), 60 Mont. 544, 199 P. 685; Stetson v. Youngquist 

(1926), 76 Mont. 600, 248 P. 196; Magelssen v. Atwell 

(1969), 152 Mont. 409, 451 P.2d 103; Brown v. Cartwright 

(1973), 163 Mont. 139, 515 P.2d 684. See also, Rude v. 

Marshall (1917), 54 Mont. 27, 166 P. 298; Brannon v. Lewis 

and Clark County (1964), 143 Mont. 200, 387 P.2d 706. We 

hold there was no prescriptive easement. 

111. DISTRICT COURT'S FINDINGS 

Are the District Court's findings supported by substantial evidence? 

Few cases that have reached this Court have had a 

longevity period greater than this case. Factwise it goes 

back to the decision of the federal government to build a 

dam in the early 1930s and to investigations made by federal 

and state agencies even prior to that time to prepare 

factual information on the feasibility of Kerr Dam. As 

previously noted, construction began in the early 1930s and 
ended in 1939, at which time appellant took over the 

operation of the dam. The respondents first noted a change 

in their land and complained to the appellant in 1941. A 

twenty-year period went by before a complaint was finally 

filed for the damages to the property. 

The files herein are numerous and the exhibits 

extensive. The trial court, facing the problem brought 

about by the case, bifurcated the the issues. In the first 

two-week trial, the court found Montana Power liable for 

damages to the Blasdel property. A second two-week trial 

established the extent of damages and just compensation. 

Montana Power appeals. This Court has had to consider a 

transcript of 2,670 pages, court files dating back to the 

early 1960s, and numerous exhibits. From all this, it can 

be seen that it has been a period of conflict for all 

parties involved. It is natural that there is a conflict of 

views on the evidence presented to the trial court upon 

which it made its decision. 

This Court's standard of review is whether the 

findings of fact and conclusions of law are supported by 

substantial evidence. See, Kearns v. McIntyre Const. Co. 

(1977), 173 Mont. 239, 567 P.2d 433. The evidence must be 

reviewed in a light most favorable to the prevailing party 

in the District Court. Johnson v. Johnson (1977), 172 Mont. 

94, 560 P.2d 1331. Rule 52(a), M.R.Civ.P., provides: 

"Findings of fact shall not be set aside unless clearly 

erroneous, and due regard shall be given to the opportunity 

of the trial court to judge the credibility of the 

witnesses. " 

Appellant argues that there is no credible evidence 
to support the trial court's finding that the water table on 

the respondents' land had risen about 4.2 feet from 1938 to 

the present time. The holding of the trial court is as 

follows: 

"As compared to the water table on 

plaintiffs' land prior to 1938, the 1959-1960 

water table was about 4.2 feet higher. Of 

this higher water table, about 1.3 feet was 

due to precipitation factors, and 3 feet due 

to the operation of the Kerr Dam. Of the 

precipitation factors a substantial portion 

of the same was the result of the operation 

of Kerr Dam and higher water tables." 

During the 1930s, the USGS had Dr. Cady investigate 

the feasibility of Kerr Dam and the effect that the higher 

lake water level would have on ground water levels. The 

Cady report noted: 

"If the annual stage of the lake is raised 

through regulation from 2,884 feet to 2,890 

feet, the average annual stage of a we11 

2,500 feet from the lake or the river will be 

raised from about 2,887 feet to about 2,893 

feet. It indicates likewise that at other 

points in the interior of the area the water 

ground levels will rise from about the same 

amount that the average lake level is raised 

by regulation. " 

The appellant argues that the trial court erroneously 

relied heavily upon the respondents' expert, Dr. Robert 

Curry, a University of Montana geologist, who did not even 

see the respondents' farm until 1971. In addition, 

appellant contends that Dr. Curry relied upon a "faulty" 

1938 study by the USGS known as the Cady report. Appellant 

further argues that in his report Dr. Cady assumed that the 

Flathead Lake would be full twelve months out of the year 

when it actually was full only four months of the year. 

Therefore, Cady's predictions are irresponsible, and Dr. 

Curry's opinions, based upon the Cady report, were totally 

inaccurate. 
Respondents, in replying to appellant's argument, 

note that the Cady report of 1941 was based on a presumed 

average lake elevation of 2,890 FASL, which is the 1.941-1949 

average lake level. Thus, as predicted, the water table 

rose to a point of 2,892. 

In addition, Dr. Curry in his study relied upon 

eleven observation wells near the respondents' farm. The 

eleven wells were monitored on a monthly basis from 1928 to 

1976 and showed an average increase of 4.2 feet in the 

ground water level. An independent United States Department 

of Agriculture report issued in 1969 confirms this 

information. Further, a March 1960 report by the Montana 

Power hydrologist noted: "In future years the effect of the 

lake regulation will become increasingly noticeable and 

eventually the preregulation water table will rise by an 

estimated 3-5 feet as a consequence of the regulation." The 

appellant's expert hydrologist, Keith Anderson, on 

examination testified concerning the water table: "There 

certainly has been a rise in the water table, not only under 

his property, but practically under the entire area." With 

such a record before the trial court, we cannot say that it 

erred in finding that the water table had risen 4.2 feet. 

As a part of this issue, we have before us the 

question of whether the rise in the water table was due to 

the operation of Kerr Dam or, as argued by appellant, due to 

precipitation. Both parties presented expert testimony. 

Dr. Curry testified for respondents, and Keith Anderson 

testified for the appellant. The following facts appear 

undisputed: (1) Montana Power Company controlled the level 

of Flathead Lake; (2) the average level of the Flathead Lake 
rose 5.4 feet in 1959 and stabilized at an elevation of 

2,890 feet; (3) for twenty-one miles upstream, to a point 

known as Foys Bend, the Flathead River is at the same level 

as Flathead lake; (4) the lake and the river "surround the 

Blasdel property"; (5) the Wiley Slough (one-fourth of a 

mile northwest of the Blasdel farm) is connected to the 

backwaters of the Flathead River; (6) the lake is the outlet 

of the ground waters such that raising the lake raises the 

ground water tables; (7) a number of old river channels cut 

across the lower valley, including the area of the Blasdel 

farm; and (8) the soils in the lower valley area are fine 

grain, glacial deposits such that ground water movement is 

very slow. The experts did not agree on two issues: (1) 

whether the ground tables in the interior area, more than a 

half mile from the reaches of the lake or river, would be 

influenced by the higher lake levels; and (2) whether the 

Wiley Slough influences the water tables at the Blasdel 

property one-quarter of a mile away. 

The trial court had considerable expert testimony 

before it. Some of this testimony is conflicting and much 

can be interpreted either way. However, we can find no 

error with the basic findings of the trial court. It 

obviously accepted the testimony of respondents ' pr incipal 

witness, Curry, and rejected the testimony of appellant's 

witness, Anderson. The trial judge was entitled to accept 

one over the other in arriving at his ultimate decision. 

While there is a dispute as to whether the river and the 

lake (more than one-half mile away) and the Wiley Slough 

(one-fourth mile away) affect the water table on 

respondents' property, the inland water table was indeed 
affected by the high water on the river, lake, and slough. 

The appellant's entire defense on the water table 

issue seemed to be directed to the fact that 1941 through 

1947 were wet years. It introduced testimony and charts 

showing that historically 1900 to 1917 were wet years, 1917 

to 1941 were dry, and 1941 through 1970 were wet. Therefore, 

appellant argues that the rise in the water table was due 

entirely to increased precipitation. Credible testimony 

contradicting appellant's theory was accepted by the trial 

court. The court found: (1) unlike the 1950s, there was no 

water in the Grange Hall Slough during 1915-1920; (2) a new 

spring developed at 2893 FASL on the Blasdel farm in 1956; 

(3) maps and aerial photographs show far more surface water 

on the property in 1956 than was on the property in 1928; 

(4) there were no salt problems in the area in 1928; and (5) 

the water table dropped very little in dry years and rose 

dramatically in the 1950s. We find substantial credible 

evidence to support the court's findings in this matter. 

IV. PLAINTIFFS' EXHIBITS 

Did the trial court err in admitting certain of 

plaintiffs' exhibits? This objection is to surveys of the 

Blasdel farm, twenty-four photographs taken in 1970, 1971 

and 1972 by respondents' attorney, and aerial photographs of 

the Blasdel farm taken in 1961, 1972 and 1974. 

Plaintiffs' Exhibit P150 is the original survey of 

the Blasdel farm. Exhibit PI54 shows various tracts in 

different colors and was introduced to show the degrees of 

soil damage. The colored tracts showed: area in red, 100% 

loss--no longer planted as of 1959; area in orange, 2/3 crop 
loss, poor production due to salt; area in yellow, 1/3 crop 

loss, spotty areas of salt damage; and area in brown, no 

claim, pasture and other areas. The appellant objected to 

this exhibit on the grounds that it was a self-serving 

statement by Blasdel and had such a contaminating effect 

that it constituted error. 

The record indicates that respondents offered ample 

foundation for the conclusions illustrated in the accepted 

exhibits. Blasdel testified that the red areas (100% loss 

areas) had been productive in the 1930s and were either 

under water or not planted in 1960 due to the wet 

conditions. For other areas, he estimated the yield he had 

received by measuring how much land had to be harvested to 

fill a forty-bushel hopper in his combine. This Court 

recognizes a farmer's competence to testify, with proper 

foundation, about the effects of water damage to his crop 

and land. Watson v. Colusa-Parrot Mining and Smelting Co. 

(1905), 31 Mont. 513, 79 P. 14. The color coded chart was 

properly admitted. 

Should the photographs of the farm taken by 

respondents' counsel have been admitted? Appellant objects 

to the admission of some twenty-four snapshots taken in 

1970, 1972, and 1973 by respondents' counsel. These photos 

were used to depict the "same" conditions in 1959, which was 

many years earlier. Therefore, according to appellant, they 

snould not have been admitted. We find that the photographs 

were admitted to show "similar," not the same, conditions as 

those found in 1959 and, as such, are admissible. Lamb v. 

Page (1969), 153 Mont. 171, 455 P.2d 337; Teesdale v. 

Anschutz Drilling Company (1960), 138 Mont. 427, 357 P.2d 4. 
Having previously found that the conditions of the property 

stabilized in 1959, the sloughs pictured in 1970, 1972 and 

1973 were similar to the sloughs in 1959; thus, we find no 

error in admitting the photos. 

Next the appellant objects to the aerial photographs 

of the farm, arguing that the aerial photographs of the 

Blasdel farm taken in 1961 were improperly admitted because 

this action had been filed in 1960, one year before and, 

therefore, the conditions after filing the suit were not at 

issue and the photos should not have been admitted. We find 

no merit to this argument due to the fact that damages 

stabilized in 1959-1960. The later photos objected to by 

appellant were representative of the 1959-1960 conditions 

and properly admitted. 

The objection raised by appellant as to the aerial 

photographs taken in 1972 and 1974 is that they were 

irrelevant and "highly confusing and prejudicial." In 

addition, the appellant alleges that "since the action was 

filed in 1960, the only pertinent dates had to be prior to 

that time." We do not agree with appellant's position. 

Having established 1959 as the year of stabilization, it was 

necessary to have information both before and after 1959. 

These aerial photos helped to indicate the conditions on the 

farm not only in 1961 but 1974. They were properly admitted 

to indicate that after 1959 the conditions remained 

approximately the same for over fourteen years. 

V. LITIGATION EXPENSES 

Did the trial court err in allowing litigation 

expenses to plaintiffs under section 70-30-306, MCA? We 
first note that the trial court held a one-day trial on 

litigation expenses at which the parties submitted 

documentary evidence in support of their fees in this 

matter. The statute here involved is section 70-30-306, 

MCA, which provides: 

"Necessary expenses of litiqation defined. 

(1) Necessary expenses of litigation as 

authorized by 70-30-305 mean reasonable and 

necessary attorney fees, expert witness fees, 

exhibit costs, and court costs. (2) Reasonable and necessary attorney fees are the 

customary hourly rates for an attorney's 

services in the county in which the trial is 

held. Reasonable and necessary attorney fees 

shall be computed on an hourly basis and may 

not be computed on the basis of any contingent fee contract entered into after July 1, 

1977. (3) Reasonable and necessary expert 

witness fees may not exclude the customary 

rate for the services of a witness of such 

expertise in the county in which trial is 

held. " 

Appellant first charges that it should not be charged 

with "faulty work," alleging that the first three complaints 

were faulty work and should not be considered by the trial 

court. We note that no such finding was made by the trial 

court and that the court, in settling attorney fees, is 

entitled to award a reasonable and necessary number of 

attorney hours worked by the various attorneys. 

Second, the appellant objects to what it calls hours 

spent "merely for attorney education." Appellant makes no 

reference to which hours are referred to. Counsel's time 

with consultants examining scientific information was 

necessary and reasonable, as found by the trial court, and 

we can find no error. 

Third, appellant notes there was a contingency fee 

contract signed by respondents on April 7, 1972, and 

reaffirmed in 1979. Appellant claims that under State By 
And Through Dept. of Hwys. v. Rogers (1979), - Mont. -, 

602 P.2d 560, 36 St.Rep. 1758, a contingency fee contract 

entered into prior to July 1, 1977, is controlling. We are 

puzzled by this claim that the trial court should have been 

held to the contingency fee contract. Here, the award of 

attorney fees was $77,277. As we view the record, a 

contingency fee contract based on the above-noted contracts 

would have totaled $100,000. In any event, under section 

70-30-306(2), MCA, and our holding in State, By and Through 

State Hwy. Com'n v. Marsh (1978), 175 Mont. 460, 575 P.2d 

38, a fee award solely based on a contingency fee contract 

would be error. The court had ample information and 

authority to award the fees as above noted, and we affirm 

the same. 

Fourth, appellant objects to the trial court's award 

of $23,482.54 for "costs of litigation." This amount 

included sums for various "experts" which were never called 

as witnesses, and as such, argues appellant, payment was not 

authorized under section 70-30-306, MCA. We find that the 

trial court in its findings considered the expert costs 

carefully and set them forth. In reviewing the appellant's 

objections we find no reference in the above objection as to 

what amounts were not related. We have long held that we 

will not consider errors on appeal unless specifically set 

forth. See, Schilling v. Curran (1904), 30 Mont. 370, 76 P. 

998. Further, it is not necessary that an expert be called 

at trial for his expense to be recoverable under section 

70-30-306, MCA. Rogers, 602 P.2d at 562. We therefore find 

no merit to this final objection on the expert costs. 

The judgment is affirmed. 
We concur: 

Judge, sitting in place of Mr. 

Justice Frank B. Morrison, Jr. 

Honorable Gordon R. Bennett, 

District Judge, sitting in 

place of Mr. Justice John C. 

Sheehy