No. 80-208 INTHE SUPREMECOURTOF THE STATEOF MONTANA

J. 0. BLASDEL and ETHEL BLASDEL, Plaintiffsand Respondents,

THEMONTANA POWERCOMPANY, a corporation, DefendantandAppellant.

Appeal from: District Courtof theEleventh JudicialDistrict, Inand for the County ofFlathead Honorable RobertC. Sykes, Judgepresiding. CounselofRecord: ForAppellant: Warden,Christiansen & Johnson,Kalispell,Montana MerrittN. Warden argued, Kalispell,Montana For Respondents: McGarvey,Lence & Heberling, Kalispell,Montana JonL. Heberling argued, Kalispell,Montana

:

### -. .J,

# -1982 Filed: Submitted: October 21,1981 Decided: FED 2

### 1DBIMr. 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-asdelsclaim that Montana Power Company's construction and operation of theKerr Dam onFlathead Lake caused thewater 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 establisheddamages as follows: jury verdict interest $115,448.64 litigation expenses* $316,457.02 Total Judgment Plus 10% interest from 12/10/79 *Awarded after aone-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 theplaintiffs. In 1930the 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 FlatheadLake remained at 2883 feet above sea level (FASL), except during two months of highwater each spring. After thedam

was constructed in 1939, the water level of Flathead Lake remained at2893 FASL for a period of fivemonths eachyear (May through September) and averaged 5.4 feet higher than thepredam level. The respondents, J. 0. and Ethel Blasdel, firstbegan operatingthe farmland inquestion in 1928astenants. They purchased the area involved atthree different times. The first purchase was made in January 1942, the second in December 1945, and thethirdin1957. The Blasdel farm is located one and one-half miles north of Flathead Lake, one-half mile from the Flathead River, and one-fourth milefrom a slough that is connected to the Flathead River. The farm is surrounded on three sidesby water--to thenorthand totheeastby theFlathead River, and tothe south by Flathead Lake. The southbound FlatheadRiver makes a largeturnabovetheBlasdelfarmand turnseastandparalleltothenorthern border of the farm. The river then turns south,and runsparalleltothe eastern border of the farm. This entire areaof the river remains atthe same level asFlathead Lake. Therefore, theBlasdel farm is surrounded by water that now averages 5.4 feet higher than the levelof thepredam years. Prior totheconstruction of Kerr Dam, and in anticipation of problems thatmight arise concerning the water table risecaused by the dam, the United StatesGeological Survey (USGS) began a study in 1928 entitled, "Effect Upon Ground Water Levels Of Proposed Surface Water Storage In Flathead Lake, Montana." Thisreport is known asthe "Cadyreport"andwas issuedby 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 reachedby the trial judge. The Cady report predicted that the high water would slowly seep through the fine soils of the Blasdel farm and that itwould take a number of years before thewater 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. Thesewells 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 weremade 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 acknowledgingany liability." OnDecember 1, 1960,the first complaint in thismatter was filed. In all, five complaints have been filed in this action. The first complaint was filed onDecember 1,1960, and noted that the Blasdels were "deprived 

# . . 

# . of unrestricted use for more than fiveyears lastpast." This complaint also noted that the water flooded and remained on the lands in 1959and 1960. The second complaint (thefirst amended complaint) was filed on December 31, 1965, and wassimilar to the firstcomplaint 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

onJune 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 indamages 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, wasdue to increased precipitation. Testimony indicates that the water table fluctuated until 1960. AlthoughBlasdels 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 tablewere temporary before 1959- 1960. In 1959-1960, the water table stabilized, and the problem becamepermanent. 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 amountofarable 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 arepresented to thisCourt for review: 1. Is the plaintiffsf action barred by statute of limitations? 2. Is theplaintiffs' 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 theplaintiffs' exhibits? 5. Did the District Court err in allowing certain costs to the plaintiffs?I. STATUTEOF 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 onDecember 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 anumber ofcases indicating that the cause of action started running when the damage first accrued. Heckamanv. Northern Pac. Ry. Co. (1933),93Mont. 363, 20 P.2d 258 (causeof action accrued when a railroad embankment caused flooding, not when built); Ackerman v. Port of Seattle (Wash. 1958), 329 P.2d 210 (actionaccrued when flights started,not when airport was built); United States v. Dickinson (4thCir. 1946), 152 F.2d 865, aff'd., 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947) (actionaccruedwhen floodingoccurred,notwhen thedamwas 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 prior to 1959-1960 and permanent after 1959-1960. Therefore, if anything, the above-cited

cases actually support the respondents' position that the

cause of actiondid not start running until 1959-1960. The only water table case cited by appellant is Korgel v. United States (8thCir. 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 isnot onpoint. 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 1941and 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 statuteof limitation and prescription. Indeed,aswe will note later in considering the evidence produced here, the appellant offered noproof ofhowmuch thewater table rose

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

rose. TheDistrict Court made a final finding of fact that respondents 

# ".

. . could not with reasonable certainty ascertain permanent damage toany substantialportion ofthe [respondents'] land until the growing season 1959-1960." This finding is also stated aspart of the first conclusion of law: "[Substantial damage to the respondents' land]

# .

# . . could notbe reasonably ascertained until thegrowing season 1959-1960." On that basis, the courtconcluded: "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 issuewe must begin with a

case of this Court, Hauser v. Toston Irr. Dist. (1977), 172 kont. 530, 565P.2d 632. InKauser, thisCourt held that a rising water table is a "taking"or permanent invasionof land which isactionable. 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), 331U.S. 745, 67 

# -S.Ct. 1382,91L.Ed. 1789, ishelpful: "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 isnot a good enough reasonwhy he must sue then or have, from that moment, the statute of limitations run againsthim. If suitmust 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 asyetuncertain. 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 frommeeting suchaprocessby postponing suit until the situation becomes stabilized. An owner of land flooded by the [defendant] would not unnaturally postpone bringing a suitagainst 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, 91L.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 statuteof limitationswas tolled when the first complaintwas 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 originalpleadings, the amendment relates back to thedate 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. 

## - , 601P.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 relateback to the original complaint.

11. PRESCRIPTIVE EASEMENT Is the plaintiffs' action barred by prescriptive easement? Theparty asserting aprescriptive easement must show (1)open, (2)notorious, (3)exclusive, (4)adverse, (5) continuous,and (6)uninterrupteduse of aneasement 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 alsobe 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 itfirst "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 elementsofprescription. 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 Blasdelproperty. 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),54Mont. 27, 166 P. 298; Brannon v. Lewis and Clark County (1964), 143 Mont. 200, 387 P.2d 706. We hold therewasno prescriptive easement.

111. DISTRICTCOURT'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 1930sand 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 andended 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 aconflict of views on the evidence presented to the trial court upon which itmade itsdecision. 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 evidencemust be reviewed in a light most favorable to the prevailing party in theDistrict Court. Johnsonv. Johnson (1977),172Mont. 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 evidenceto support the trial court's finding that thewater 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 toprecipitation 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 ofKerr 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 reportnoted: "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 lakeor 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 studyby the USGS known as the Cady report. Appellant further argues that inhis reportDr. 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 2,890FASL,which is the 1.941-1949 average lake level. Thus, as predicted, the water table rose to apoint 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 amonthly basis from 1928 to 1976 and showed an average increase of 4.2 feet in the groundwater level. An independentUnited States Department of Agriculture report issued in 1969 confirms this information. Further, a March 1960 report by the Montana Power hydrologistnoted: "In futureyears the effect of the lake regulation will become increasingly noticeable and eventually the preregulation water table will rise by an estimated 3-5 feetasa consequence of the regulation." The appellant's expert hydrologist, Keith Anderson, on examination testified concerning the water table: "There certainly hasbeen a rise in the water table,not only under hisproperty, 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 tablehad risen 4.2 feet. As a part of this issue, we have before us the question ofwhether the rise in the water table was due to the operation of Kerr Dam or,asargued 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 ofFlathead Lake; (2)the average levelof the Flathead Lakerose 5.4 feet in 1959 and stabilized at an elevation of 2,890 feet; (3)for twenty-one miles upstream, to a point known asFoys 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 groundwater 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 amile 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

### 'principal 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 indeedaffected 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 1917were wet years, 1917 to 1941 were dry, and 1941 through 1970were 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 surfacewater

on the property in 1956 than was on the property in 1928; (4)therewereno saltproblems in thearea 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 1972by respondents' attorney, and aerial photographs of the Blasdel farm taken in 1961, 1972and 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 longerplanted as of 1959;area in orange, 2/3 croploss,poor production due to salt;area inyellow, 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 howmuch 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 1973by respondents' counsel. These photos

were used to depict the "same" conditions in 1959, whichwas many years earlier. Therefore,according to appellant, they snould nothave been admitted. We find that thephotographs

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),138Mont. 427, 357P.2d 4.Having previously found that the conditions of the property stabilized in 1959, the sloughspictured in 1970, 1972 and 1973were similar to the sloughs in 1959; thus,we find no

error in admitting thephotos. 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 suitwere not at issue and thephotos shouldnothave 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 theyear of stabilization,itwas necessary to have information both before and after 1959. These aerial photos helped to indicate the conditions on the farm not only in 1961but 1974. They were properly admitted to indicate that after 1959 the conditions remained approximately the same for over fourteenyears.

V. LITIGATION EXPENSES Did the trial court err in allowing litigation expenses to plaintiffs under section 70-30-306, MCA? Wefirst 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,whichprovides: "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 inwhich 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 firstcharges that it shouldnot be charged with "faultywork," alleging that the first three complaints were faultywork 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 towhat it callshours 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 findno 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 ByAnd Through Dept. of Hwys. v. Rogers (1979),

## -Mont. 

### -, 602 P.2d 560, 36 St.Rep. 1758, a contingency fee contract entered intoprior 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, paymentwasnot 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 objectionswe 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,Schillingv. 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, 602P.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 ofMr. Justice Frank B. Morrison, Jr.

Honorable Gordon R. Bennett, District Judge, sitting in place ofMr. JusticeJohnC. Sheehy