No. 89-145 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

BURK RANCHES, INC., A Montana corp., 

Plaintiff and Respondent, 

-vsSTATE OF MONTANA and STATE OF MONTANA 

FOR STATE FISH AND GAME COMMISSION, 

Defendants and Third-Party Plaintiffs 

and Appellants, 

-vsJOHN W. RIEBER, JR., GUY HOLT, MACK POOLE 

and LARRY BRADLEY, 

Third-Party Defendants and Respondents. 

and 

JOHN W. RIEBER, MICHELE RIEBER and RIEBER RANCH, 

A Montana corp., 

Plaintiffs and Respondents, 

-vsSTATE OF MONTANA; and DEPARTMENT OF FISH, WILDLIFE 

AND PARKS, 

Defendants, Third-Party Plaintiffs and 

Appellants, 

-vsGUY HOLT, MACK POOLE, and LARRY BRADLEY, 

Third-Party Defendants and Respondents. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant (s) : 

R. Scott Currey, Agency Legal Services, Helena, 

Montana 

For Respondent (s) : 

C? 1 Donald Robinson; Poore, Roth & Robinson, Butte, 

C'J . . ' Montana 

(-- -4 Steve Reida; Landoe, Brown, Planalp & Kommers, 

c Bozeman, Montana 

c-3 0 

L. : 

-. 

-- CT) - . L- . - c- : -. . Submitted: October 17, 1989 i.,. - 1 ' * 

~3 )2 

. - Decided: March 9, 1990 

~i@d: 1; - \ 

Clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

The State of Montana appeals from a negligence action in the 

District Court of the Fifth Judicial District, Beaverhead County, 

arising out of the collapse of the Brownes Lake Dam. The District 

Court held all parties liable as a matter of law, and the jury 

apportioned 100% of the liability to the State and awarded actual 

and future damages to downstream ranchers. 

We reverse and remand. 

ISSUES 

The State of Montana raises the following issues on appeal: 

1. Whether the District Court erred in not dismissing 

plaintiff Rieber's claim for future damages resulting from his loss 

of irrigation capacity. 

2. Whether in apportioning no negligence to the plaintiff and 

third-party defendants the jury disregarded the District Court's 

instructions that all parties were liable. 

3. Whether the jury's award of future damages to the 

plaintiff for lost hay crops, decreased capital value, and 

increased pasture expenses was excessive as triple compensation for 

the same injury. 

FACTS 

Sometime prior to 1894, Joseph Browne constructed the Brownes 

Lake Dam on his patented mining claim near Glenn, Montana. 

Designed to store irrigation water from Rock Creek, the dam raised 
the natural level of Brownes Lake by eight feet. In 1923, the 

Beaverhead County District Court apportioned the water rights to 

Rock Creek and enjoined all parties and successors owning ditch, 

water, or reservoir rights, or any interest therein, from interfering with the irrigation system. Wood Livestock Co. v. Jensen (5th 

D. Mont. April 25, 1923). 

In 1963 the State of Montana purchased the lake and surrounding land as a recreational site under the control of the State Fish 

and Game Commission (presently known as the Department of Fish, 

Wildlife and Parks). The State has filed an as yet unadjudicated 

claim to a nonconsumptive, recreational, water right. Other water 

rights holders include John W. Rieber, Guy Holt, Mack Poole, and 

Larry Bradley [hereinafter water users], the present successors in 

interest to the parties subject to the 1923 decree. During the 

State's ownership of the dam, the water users maintained exclusive 

control of the headgate on Brownes Lake Dam regulating water flow 

to irrigate their ranches. 

Both the State and the water users were aware that the dam was 

unstable. The State first noted that the dam was old and seeping 

water in May of 1976. In 1979, the United States Forest Service 

and the Montana Department of Natural Resources and Conservation 

inspected the dam and informed the State that it was hazardous. 

The Forest Service felt that its deteriorating condition could lead 

to a collapse which would damage public and private land and 
RIEBER'S FUTURE DAMAGES 

The parties stipulated that Rieber's past special damages 

totaled $8,998 and the jury found $55,000 in general damages and 

$155,480 in future special damages. The State contests only the 

latter award which included damages for decreased capital value, 

thirty years of loss of hay crops, ten years of increased irriqation labor costs, and thirty years of increased pasturage expenses, 

all resulting from Rieber's lost irrigation capacity. 

The State argues that, although there is no on-point Montana 

law, the majority of jurisdictions hold that a landowner has no 

duty to maintain an artificial impoundment for the benefit of other 

water users absent a statute or covenant to the contrary. See A. 

Tarlock, Law of Water Rights and Resources, 5 3.08(1)-(3) (1989). 

The State also argues that it was not a successor to water rights 

created by the 1923 apportionment and, therefore, was not enjoined 

by the 1923 decree from destroying the dam, or allowing its 

destruction. Since the State had no duty to maintain the dam for 

irrigation purposes, it asserts that it is not liable for damages 

arising from Rieber's lost irrigation capacity. 

Who is liable for the maintenance of artificial impoundments 

is an important question that will undoubtedly arise again as 

Montana's reservoirs continue to age. That, however, is not the 

present question. The State's argument attempts to correlate 

specific types of duties with liability for specific types of 
possibly cause loss of life. In the winter of 1979-80 the State 

met with some of the water users informing them of the condition 

of the dam. The State told the water users that they could either 

take responsibility for maintaining the dam or the State would 

breach it the following spring. No action was taken by either 

party. In April of 1981, the Army Corps of Engineers again 

informed the State that inspection showed the dam to be in poor 

condition. Three years later, the dam collapsed damaging the 

property of downstream ranchers and eliminating the storage system. 

Burk Ranches, Inc., which did not use the irrigation system, 

filed suit against the State for damage caused by the dam's 

outwash. Water user Rieber filed against the State for outwash 

damage and loss of irrigation capacity. In both cases the State 

joined the nonparty water users as third-party defendants. The 

State settled with Burk Ranches for $134,000, but retained its 

action for contribution against the water users. 

Prior to trial, the State admitted liability and the District 

Court entered summary judgment holding the State and water users 

jointly and severally liable because they both had a duty to 

maintain the dam. The court joined the two actions for trial in 

which the jury was to determine Rieber's damages and to apportion 

damages between the State and the water users. The jury returned 

a verdict of $219,478 for Rieber and found the State 100% liable. 

The State now appeals both decisions. 
damages. The State asserts that it is not liable for loss of 

irrigation since it had no duty to maintain the dam for irrigation 

purposes. While this duties-and-damages correlation had meager 

support at one time, it has been uniformly rejected in modern tort 

law. W. Keeton, Prosser and Keeton on Torts, 5 43 at 289-90 (5th 

ed. 1984) ; Restatement (Second) of Torts 5 281, comment j (1965) . 

Montana law provides that tortfeasors are liable for all 

damages caused in fact and proximately caused by their negligence, 

5 27-1-317, MCA, including reasonably certain future damages, 5 27- 

1-203, MCA. The State admitted liability for the collapse of the 

dam apparently relying on a landowner's duty to warn about, and 

make safe, hazardous conditions. See Restatement (Second) of Torts 

§§ 364, 370 (1965). As the State itself argues, a finding of 

liability includes causation-in-fact and proximate causation. The 

State, therefore, is liable for Rieberts reasonably certain future 

damages as determined by the jury's apportionment of negligence, 

see 5 27-1-703, MCA, regardless of what type of duty it owed. The 

future damages awarded by the jury, however, were not reasonably 

certain and did not comply with the appropriate measure of damages. 

Although no single measure of damages can serve in every case 

to adequately compensate an injured party, the general rule in 

Montana is that the measure of damages for permanent injuries to 

real property is the difference between the value of the property 
before and after the injury.' Watson v. Colusa-Parrot Mining & 

Smelting Co. (1905), 31 Mont. 513, 518, 79 P. 14, 15; see also 

Kebschull v. Nott (1986), 220 Mont. 64, 67, 714 P.2d 993, 995. 

This measure of damages avoids problems of double and speculative 

damages as is amply illustrated by Rieberls award of damages for 

both lost irrigation and decreased capital value. 

Earl Love gave most of the damages evidence. As the former 

district conservationist for the Dillon Soil Conservation Service, 

Love was familiar with the Rieber ranching operation before the dam 

collapsed. After the collapse he was hired to monitor and analyze 

the impact of the lost irrigation capacity on the Rieber ranch. 

He gave the jury his opinion of the ranch's decreased capital value 

based on lost hay production, lost aftermath grazing, and increased 

pasturage fees. 

Love's opinion demonstrates that the award constitutes double 

damages for the same injury. When the landholder recovers damages 

based on the decreased value of ranch and farm property, damages 

for lost crops constitute double damages and are not recoverable. 

Wheatland Irrigation Dist. v. McGuire (Wyo. 1977), 562 P.2d 287, 

298 ; Manning v. Woodlawn Cemetery Corp. (Mass. 1921) , 131 N. E. 287, 

288; Kugel v. Village of Brookfield (Ill. App. 1944), 54 N.E. 2d 92, 

96. Love's valuation of the property after injury necessarily took 

 his is also the universal rule in other jurisdictions. See 

22 Am.Jur.2d1 Damaqes 5 405 at n.19 (1988). 
into account the inability of the land to produce at pre-injury 

levels. Loss of use is an appropriate factor to be considered in 

determining decreased value; it is not a separately compensable 

item of damages. 

The evidence also demonstrates that the damages failed to 

satisfy the statutory requirement of reasonable certainty. See 5 

27-1-203, MCA. The damages for thirty years of lost hay crops and 

for thirty years increased pasturage expenses were excessively 

speculative. Love testified that he chose the thirty-year period 

on the assumption that the thirty-five-year-old Rieber would retire 

at age sixty-five. He correctly noted that the losses would 

actually go on forever. 

Permanent injuries to real property generate damages which 

extend indefinitely into the future defying formulation of any 

reasonably certain basis for evaluation. Claiming future damages 

for only a specified number of years provides only a cosmetic 

solution to the problem. The record does not indicate that 

Rieberls hay crops and pasturage will return to pre-injury levels 

on the thirty-first year after the collapse of the Brownes Lake 

Dam. They may be restored at an earlier date, or they may never 

be restored. Even if Rieber retires at age sixty-five, the injury 

will probably continue in his successor. 

Love's testimony on the ranch's decreased capital value also 

produced excessively speculative damages. We have held in a number 
of cases that the jury may base future damages on expert testimony 

which necessarily includes some degree of conjecture and speculation. Stark v. Circle K Corp. (1988), 230 Mont. 468, 478, 751 P.2d 

162, 168; Graham v. Clarks Fork Nat'l Bank (Mont. 1981), 631 P.2d 

718, 720, 38 St.Rep. 1140, 1143; Frisnegger v. Gibson (1979), 183 

Mont. 57, 71, 598 P. 2d 574, 582. However, we have also consistently reiterated the statutory requirement that future damages must 

be reasonably certain. This imperative requires the parties to lay 

before the jury the most reliable type of evidence available for 

the particular type of injury. With some types of injury, some 

conjecture and speculation is unavoidable. Uncertainty, however, 

can be minimized in evidence of property damages. In the case of 

permanent injuries to real property, evidence based on the 

appraised value of the property before and after the injury, or an 

equally reliable method of valuation, ensures reasonable certainty. 

Whether an injury is permanent or temporary is a question for 

the jury. Rempfer v. Deerfield Packing Corp. (N.J. 1950), 72 A.2d 

204, 209; Benton Gravel Co. v. Wright (Ark. 1943), 175 S.W.2d 208, 

210. In distinguishing between permanent and temporary injuries, 

[a] permanent injury to real property . . . is 

one of such a character and existing under 

such circumstances that it will be presumed to 

continue indefinitely. A temporary or continuing injury is one that may be abated or 

discontinued at any time, either by the act of 

the wrongdoer, or by the injured party. 
Worden v. Bielenberg (Minn. 1912), 138 N.W. 314, 315; see also 

Gross v. Connecticut Mut. Life Ins. Co. (S.D. 1985), 361 N.W. 2d 

259, 272. 2 

The ability to repair the injury must, however, be more than 

a theoretical possibility; it must be an actual possibility within 

reasonable capabilities of the parties. Even though repair is 

theoretically possible, if the cost of repair greatly exceeds the 

decreased value of the property, the injury is presumptively 

permanent3 and the decreased value rule applies. United States 

Steel Corp. v. Benefield (Fla. App. 1977), 352 So.2d 892, 894, 

cert. den. (Fla.) 364 So.2d 881; see also Kebschull, 220 Mont. at 

66, 714 P.2d at 994. To hold otherwise would allow repair and 

replacement damages which might far exceed any benefit regained. 

As in this case, the cost of replacing and maintaining Brownes Lake 

Dam may well exceed the reasonable cost of lost crops and pasturage 

for the foreseeable future. It may even exceed the value of the 

ranch itself. The disparity would encourage the injured party to 

2ff~ermanent injuryv1 has at least two meanings. In the present 

context it refers to whether the injury can be repaired. In the 

context of the statute of limitations, Ifpermanent injuryn refers 

to whether the injury has stabilized enough that the extent of the 

damage has become reasonably certain. Haugen Trust v. Warner 

(1983), 204 Mont. 508, 513, 665 P.2d 1132, 1135. Use of the term 

in the present discussion does not alter its definition under the 

statute of limitations. 

3~he presumption of permanence is only a presumption. It can 

be overcome by statutory and common laws, such as environmental 

laws, which compel repair or replacement. 
forego actual repairs and reap a windfall profit contrary to the 

purpose of compensatory damages. 

The injured party is to be made as nearly 

whole as possible--but not to realize a 

profit. Compensatory damages are designed to 

compensate the injured party for actual loss 

or injury--no more, no less. 

Spackman v. Ralph M. Parsons Co. (1966), 147 Mont. 500, 506, 414 

P.2d 918, 921. 

In summary, the measure of damages for permanent injury to 

real property is the difference between the appraised value of the 

property before and after the injury. An injury is permanent if 

it will continue indefinitely. An injury is presumptively permanent when the cost of repair greatly exceeds the property's 

decreased value. If the injury is temporary, the measure of 

damages is the cost of repair plus damages for loss of use up to 

the time when the injury reasonably could have been repaired. Bos 

v. Dolajak (1975), 167 Mont. 1, 10, 534 P.2d 1258, 1262. 

APPORTIONMENT OF LIABILITY 

The State argues that by apportioning negligence at 100% for 

the State and 0% for Rieber and the other water users, the jury 

ignored the ~istrict Court's instruction that all parties were 

liable. We agree that the jury ignored the instruction, but not 

because it found the State responsible for all damages. The jury 

understandably disregarded the liability instruction because it 
received conflicting instructions requiring it to also find legal 

causation. 

Prior to trial, the District Court entered summary judgment 

holding the State and water users jointly and severally liable. 

The STATE has admitted liability. It now 

claims that the water users are jointly and 

severally liable. With this position, the 

Court agrees; and finds that there are no 

genuine issues of fact which would or could 

result in a contrary finding. The water users 

are jointly liable. Damages, if any, should 

be properly apportioned between the joint 

tortfeasors, commensurate with the degree of 

their respective negligence. 

Order and Findings of the District Court, March 18, 1988. 

The District Court appropriately instructed the jury on its 

finding of liability and the issues remaining for determination. 

However, the court also inconsistently instructed the jury on legal 

causation. 

You are instructed that the doctrine of "comparative negligence1' is applicable to this 

case. Further, you are advised that the State 

has admitted liability and that the Court has 

previously adjudged that all other parties, 

including Rieber' s [sic] , are jointly and 

severally liable to the extent of their respective and apportioned negligence. You must 

determine the degree of each party's negligence and assess him the percentage of negligence contributing as a lesal cause to the 

damaqes and enter the percentage on the appropriate line next to that party's name on 

the verdict form. 

Jury Instruction No. 12. (Emphasis added.) 
Before you can apportion liability as to any 

party, you must find that parties1 [sic] 

negligence was a legal cause to some percentage of the damages. 

Jury Instruction No. 20. 

A legal cause of an injury is a cause which is 

a substantial factor in bringing about the 

injury . 

Jury Instruction No. 11. 

The verdict form contained the same inappropriate instruction. 

We further find that the damages herein assessed are apportioned in accordance with what 

we find to be the comparative negligence 

proximately causinq said damages as follows .... 

Jury Verdict Form. (Emphasis added.) 

A finding of liability includes a finding of every element 

necessary to establish liability except those specifically reserved 

by the judgment. In negligence, the essential elements of liability include duty, breach, cause-in-fact, proximate cause, and 

damages. Thornock v. State (1987), 229 Mont. 67, 72, 745 P.2d 324, 

327. Here, the summary judgment reserved only the amount and 

apportionment of damages for the jury, but the court instructed the 

jury that it had to find causation. We recognize that cause cannot 

be split from effect; the cause of the damage and the amount of the 

damage caused, are, in reality, different facets of the same 

concept. However, by giving instructions on causation, the court 

directed the jury to redetermine an issue already decided on 
summary judgment. The court should have made the jury's duty less 

ambiguous by instructing on the finding of liability and the 

meaning of that finding; both parties had a duty to maintain the 

dam, both breached their duty, and both were the actual and legal 

causes of any resulting damages. 

The jury's apportionment of 100% of the damages to the State 

and 0% to the other parties is not an error per se. The apportionment of liability is a duty reserved solely for the jury. Section 

27-1-703(4), MCA. It is well within the authority of the trier of 

fact to find that a defendant had a duty, breached it, and caused 

injury to the plaintiff, and yet award no compensation when the 

plaintiff failed to adequately prove damages. See Lenz Constr. Co. 

v. Cameron (1984), 207 Mont. 506, 511-12, 674 P.2d 1101, 1104. 

That possibility, however, is difficult to envision when the court 

found on summary judgment that both had breached their concomitant 

duty to maintain the dam. 

CONCLUSION 

The damages awarded in Rieber v. State of Montana were based 

on an inappropriate measure of damages, speculative, and included 

double compensation for the same injury. In apportioning the 

percentage of negligence to the parties the jury relied on improper 

instructions and inappropriately redecided the issue of causation. 

We therefore reverse Rieber v. State of Montana, Cause No. 10612, 

on the amount and apportionment of damages, including apportionment 
on the State's contribution claim against the third-party defendants. The case is remanded to the District Court for further 

proceedings consistent with this opinion. 

We also reverse and remand the District Court's summary 

judgment on the State's contribution claim in Burk Ranches v. State 

of Montana, Cause No. 10348. In that case, the State settled with 

the plaintiff for $134,000 but retained an action for contribution 

against the third-party defendant water users. The percentage of 

the water users1 negligence in the collapse of the dam, and 

therefore the percentage of their contribution in Burk Ranches, 

became res judicata on the jury's apportionment of damages in 

Rieber v. State. Following the Rieber jury's 0% apportionment to 

the water users, the District Court entered summary judgment in 

favor of the water users on the State's contribution claim in Burk 

Ranches. Because the Rieber jury was improperly instructed on the 

apportionment of damages, we hold that the summary judgment in Burk 

Ranches v. State was also an error of law. The State's $134,000 

settlement with plaintiff Burk Ranches stands. 

\ "/ Chief Justice /f 
We concur: 

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