No. 81-501 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

198% 

TRAVIS BEEUE and AARON KEMPH, 

Plaintiffs and Appellants, 

THE STATE OF MONTANA, 

MUSSELSHELL COUNTY, 

Defendants and Respondents. 

Appeal from: District Court of the Fourteenth Judiciai District, 

In and for the County of Eilusselshell, 

Honorabie Nat Allen, Judge presiding 

Counsel of Record: 

For Appellants: 

Clarence TI Belue argued, Hardin, Montana 

For Respondents: 

Ask and Pratt, Roundup, Montana 

Thomas Ask argued, Roundup, Montana 

Submitted': July 8, 1982 

Decided: August 16, 1982 
Mr. Justice John C. Harrison delivered the Opinion of the 

Court. 

An action was brought by the plaintiffs alleging 

negligence and maintaining a public or private nuisance. 

The District Court entered summary judgment for the 

defendants with respect to such claims and the plaintiffs 

appeal. 

The sole issue before the Court is whether the facts 

as developed on a motion for summary judgment show that a 

burning slag pile constituted the foreseeable risk of forest 

and range fire. 

The District Court made its decision to grant summary 

judgment to defendants on the basis of some ten 

depositions, affidavits and other documents submitted to it. 

Those depositions and a f f idavits establish that Republic 

Coal Company, a/k/a Klein Coal Mine, is located four miles 

south of Roundup, Montana, on Section 36, Township 8 North, 

Range 25 East M.P.M. A coal mine was operated on this 

property from 1908-1909 until 1956, when it closed. During 

this period, slag (rocks, coal, and other mine waste 

products) was piled in certain areas on the section. One of 

the slag piles in question is approxi~nately 100 feet high, 

covered with vegetation, and located on a ridge adjacent to 

Highway 87. On the afternoon of December 4, 1979, during a 

severe windstorm, a fire started near this slag pile, and 

spread four and one-half to five ~niles across defendants' 

land and onto the plaintiffs' land. 

The trial court found that the slag pile started 

burning prior to 1950. Red embers were then visible to 

motorists driving along the highway. In later years the 

embers disappeared, but fumes indicated that the fire may 
have moved to deep lnside the pile. However, after the coal 

mine closed the pile was not considered a fire hazard, and 

no fires were ever reported. When the state built a highway 

through a portion of the slag in 1961, the fire was 

apparently dead. 

Plaintiffs sued the slag pile owners for failure to 

construct a fire break or other protection from burning 

slag. The trial court viewed the premises, considered 

depositions and aff idavits, and granted defendants motions 

for summary judgment. The court noted that the slag pile 

had never caused a fire in that area, that flames were never 

vlsible on the surface, and that the pile had never been 

considered a nuisance or hazard. The court then concluded 

that the defendant's conduct in leaving the slay pile 

untouched until 1979 was reasonable, prudent, and did not 

create an unreasonable hazard. 

Plaintiffs contend that other conclusions could be 

reasonably drawn from the same facts: Fire hazards may 

exist without flames; and the storage of combustible 

material on ones property can reasonably be expected to 

start a fire. 

Rule 56(c), M.R.Civ.P., provides that summary 

1 udgment is proper if : " . . . the pleadings, depositions, 

answers to interrogatories, and admissions on file, together 

wlth the affidavits, if any, show that there is no genuine 

Issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law." The movant must 

make a showing that excludes any reai doubt as to the 

existence of any genuine issue of material fact. Harland v. 

Anderson (1976), 169 Mont. 447, 548 P.2d 613. 
This Court in Mang v. Eliasson (1969), 153 Mont. 431, 

458 P.2d 777, outlined a landowner's rights and duties, and 

a theory of negligent use in great detail. In that case a 

jury found the defendant negligent in the use of his 

property. This Court overturned the jury verdict and found 

as a matter of law that the defendant was not negligent. 

The Mang case, supra, arose in the same district and under 

the same judge as heard this case and he relied on our 

opinion in Nang in deciding this issue. The following are 

quotes from Mang which apply to this case: 

"Basically the reasonableness of the use of 

property by its owner must necessarily be 

determined from the facts and circumstances 

of each particular case as it arises by the 

application of appropriate provision or 

principles of law and the dictates of mutual 

and reciprocal justice. Further, before 

negligence can be predicated on any given 

act, back of that act must be sought and 

found a duty to the individual complaining, 

the observance of which duty would have 

averted the injury. . . 

"An additional test of actionable negligence 

is not what might have prevented a particular 

accident, but what reasonably prudent men 

would have done in the discharge of their 

duties under the circumstances as they 

existed at the time of the accident. 

Milasevich v. Fox Western Montana Theatre 

Corp., 118 Mont. 265, 272, 165 P.2d 195 . . . 

"It has been well said that a defendant who 

could not foresee any danger of direct injury 

resulting from his conduct or any risk from 

an intervening force is not negligent. 

Taylor v. Chicago, Milwaukee, St. Paul & Pac, 

Ry. Co., 142 Mont. 365, 371, 384 P.2d 759; 

Lencioni v. Long, 139 Mont. 135, 361 P.2d 

455. 

"'In striking this balance--that is, in 

weighing the likelihood of harm, the 

seriousness of the injury and the value of 
the interest to be sacrificed--the law judges 

the actor's conduct in the light of the 

situation as it would have appeared to the 

reasonable man in his shoes at the time of 

the act or omission complained of. Not what 

actually happened, but what the reasonably 

prudent person would then have foreseen as 

likely to happen, 

of reasonableness * * *' 

"Harper and James, The Law of Torts, supra, 

at page 1018, state the prevailing view. The 

obligation of defendants turns on whether: 

"I. . . the offending conduct foreseeably 

involved unreasonably great risk of harm to 

the interests of someone other than the actor 

. . . [Tlhe obligation to refrain from . . . particular conduct is owed only to those who 

are foreseeably endangered by the conduct and 

only with respect to those risks and hazards 

whose likelihood made the conduct unreasonably dangerous. Duty, in other words, is 

measured by the scope of the risk which 

negligent conduct foreseeably entails.' 153 

Mont. 437-38, 458 P.2d at 781. 

From the principles of law set forth in Mang, supra, 

we can find no genuine issues of material facts constituting 

negligence on the part of the defendants and find no error 

in the trial court's granting summary judgment on the issue 

of negligence. 

In addition, plaintiffs argued that section 50-63- 

103, MCA, applied to the facts of this case. 

This Court, in a recent case, DNRC v. Clark Fork 

Logging Company (1982) , Mont. P.2d I 39 -1 - 

St.Rep. 1146, considered the above statute and interpreted 

the same to apply only to the intentional setting or leaving 

a fire, the purpose of which is to burn excess forest 

material. That is clearly not the situation here, and we 

hold the statute not applicable. 

The next issue is whether the slag pile was a public 

or private nuisance, thereby making the defendants liable. 
Section 27-30-101, MCA, defines "nuisance" as: 

"Anything which is injurious to health, indecent or 

offensive to the senses, or an obstruction to the free use 

of property . . ." 

Here the undisputed facts show that the old slag pile 

existed for many, many years along Highway 83 in full public 

view. There is no showing that it had ever previously 

caused fires in the area and there is no showing that it was 

considered a hazard to neighboring property owners. 

This court held in Faucett v. Dewey Lumber Co. 

(1928), 82 Mont. 250, 259, 266 P. 646, 648, referring to the 

statutes covering public and private nuisances, that " [t] he 

foregoing statutes are, in effect, but crystallizations of 

the common law and are consistent with the general rules 

which have long been recognized by the courts." 

"'A nuisance per se is generally defined as an act, 

occupation, or structure, which is a nuisance at all times 

and under any circumstances, regardless of location or 

surroundings. Other definitions are: any act or omission or 

use of property or thing which is of itself hurtful to the 

health, tranquillity, or morals, or which outrages the 

decency of the community; that which cannot be so conducted 

or maintained as to be lawfully carried on or permitted to 

exist; and, as related to private persons an act or use of 

property of a continuing nature, offensive to and legally 

injurious to health and property, or both. '39 Am.Jur., 

Nuisances, Sec. 11, p. 289." McCollum v. Kolokotrones 

(1957), 131 Mont. 438, 443-444, 311 P.2d 780, 782-83. 

Here, for many years open flames were not visible and 

any burning in the area occurred beneath the surface. For 
the ten years prior to the 1979 fire, underground burning 

was less and less obvious to any observer and there have 

been no complaints to public officials concerning the pile. 

Therefore, we find no genuine issue of material fact that 

the slag pile was a public or private nuisance. 

Whether there was or was not substantial evidence is 

a matter of law. In Flansberg v. Montana Power Company 

(1969), 154 Mont. 53, 460 P.2d 263, this Court, considered 

the granting of a motion for summary judgment and held: 

"If there is no evidence of any negligent act 

or omission by the defendant, a nonsuit is 

properly granted. (Citation omitted.) This 

rule is equally applicable to a motion for 

summary judgment under the circumstances 

disclosed here. 154 Mont. at 60, 460 P.2d at 

267. 

"When the record discloses no genuine issue 

as to any material fact, the burden is on the 

party opposing the motion for summary judgment to present evidence of material and 

substantial nature raising a genuine issue of 

fact (Brown v. Thornton, 150 Mont. 150, 432 

P.2d 386) and as in this case, the failure to 

sustain that burden authorizes the granting 

of summary judgment. 154 Mont. 58, 460 P.2d 

at 266. 

"Whether or not there is substantial evidence 

presented by plaintiff is a question of law 

for the court and not a question of fact for 

the jury." 154 Mont. 60, 460 P.2d at 267. 

This Court has held in a number of cases that the 

party seeking summary judgment has the initial burden of 

showing absence of any issue of material fact remaining, and 

then the burden passes to the opposition to raise such 

material issue of fact. See, DeWinter v. Capp Homes, Inc. 

(1973), 162 Mont. 19, 507 P.2d 1061. 

For the reasons stated the decision of the District 

Court is af f irmed. 
We concur: 

Justices 
Mr. Chief Justice Frank I. Haswell dissenting: 

I dissent. In my view a jury question exists regarding whether the damage caused to the plaintiffs' land was 

foreseeable. Accordingly, there are genuine issues of 

material fact precluding summary judgment. Rule 56(c), 

M.R.Civ.P. 

The majority relies on Mang v. Eliasson (1969), 153 

Mont. 431, 458 P.2d 777, to support the District Court's 

granting summary judgment to defendants. However, this case 

is distinguishable on its facts from Mang. 

In Mang there was no indication that the defendants' 

summer-fallowing the ground in mid-September could have 

caused plaintiffs' damage, absent a strong wind. In this 

case, Ben Mundie, a geologist employed by the State of 

Montana, Department of Lands, stated by affidavit that, "an 

extreme danger of potential fire presently exists and will 

continue to exist so long as the coal gob pile continues to 

burn." Mundie also concurred with the briefing papers of 

the Assistant Director of Abandoned Mine Lands that a "high 

probability of igniting future range and forest fires" 

existed and that the "fire is extremely dangerous to 

travelers using Highway 87, local ranchers, and the 

surrounding communities. " 

In my view, the expert opinion evidence of Mundie 

raised a question of fact to be decided by the jury of whether defendants could have reasonably foreseen plaintiffs' 

damages from the smoldering gob pile. 

I would reverse for a trial on the merits. 

~4$..WW 4 

Chief Justlce 
I concur in the foregoing dissent of Chief Justice 

Haswell.