### No. 81-501 INTHE SUPREME COURTOF THE STATEOF MONTANA 198%

TRAVISBEEUE andAARON KEMPH, PlaintiffsandAppellants,

THE STATEOF 

### MONTANA, MUSSELSHELL COUNTY, Defendantsand Respondents.

Appeal from: District Court of the FourteenthJudiciaiDistrict, 

### Inand for theCounty ofEilusselshell, HonorabieNat Allen,Judgepresiding Counsel of Record: ForAppellants: ClarenceTI

### Belue argued,Hardin,Montana ForRespondents: Ask and Pratt,Roundup,Montana ThomasAsk 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 slagpileconstituted the foreseeable risk of forest and range fire. The DistrictCourtmade 

### itsdecision togrant summary judgment to defendants on the basis of some ten depositions, affidavitsand other documents submitted to it. Those depositions and a f fidavits 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 incertainareason 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 mayhave moved todeep lnside thepile. However, after the coal mine closed the pile 

### was not considered a fire hazard, and

no fires

### were ever reported. When the statebuilt a highway through a portion of the slag in 1961, the fire was apparentlydead. 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 affidavits, and granted defendants motions for summary judgment. The court noted that the slag pile had never caused a fire inthatarea, 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 starta fire. Rule 56(c), M.R.Civ.P., provides that summary 1

udgment is proper if: 

### "

# .. . the pleadings, depositions,

answers tointerrogatories, 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 asa matter of law." The movant must make a showing that excludes any reai doubt as to the existenceof any genuine issueof material fact. Harland v. Anderson (1976), 169Mont. 447, 548 P.2d 613.

### ThisCourt inMang v. Eliasson (1969), 153Mont. 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 thiscase: "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 notwhat 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., 118Mont. 265, 272, 165P.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 tobe sacrificed--the lawjudges 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 thenhave foreseen as likelytohappen, of reasonableness

## *

# **'

"Harper and James, The Law of Torts, supra, atpage 1018, statetheprevailing view. The obligation of defendants turnson whether:

"I. 

# .. the offending conduct foreseeably involved unreasonably great risk of harm to the interestsof someone other than the actor



# .

# .. [Tlhe obligation to refrain from

# . .. particular conduct is owed only to those who areforeseeably 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 at781. From the principles of law set forth inMang, supra, 

### we can findno genuine issuesof material factsconstituting 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 tothe factsof thiscase. 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 statutenot applicable. The next issue is whether the slag pile was a public

or privatenuisance, therebymaking thedefendants 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 factsshow that the old slag pile existed formany, many years along Highway 83 in fullpublic view. There 

### is no showing that 

### it had ever previously caused firesin the area and there 

### is no showing that 

### it was considered 

### a hazard toneighboring property owners. This court held in Faucett v. Dewey Lumber Co. (1928),82 Mont. 250, 259, 266 P. 646, 648, referring to the statutescovering 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 definitionsare: any actor 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; thatwhich 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), 131Mont. 438, 443-444, 311 P.2d 780, 782-83. Here, formany yearsopen flameswere notvisibleand any burning in the area occurred beneath the surface. Forthe ten years prior to the 1979 fire, underground burning

was less and less obvious to any observer and there have been no complaints topublic officials concerning the pile. Therefore, we find no genuine issue of material fact that the slagpilewas a public orprivatenuisance. 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, thisCourt, considered thegranting of amotion 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. 154Mont. at60, 460 P.2d at 267. "When the record discloses no genuine issue asto anymaterial 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 asinthiscase, the failureto sustain that burden authorizes the granting of summary judgment. 154 Mont. 58, 460 P.2d at266. "Whether ornot there 

### is substantial evidence presented by plaintiff is a question of law for the court and not a question of fact for thejury." 154Mont. 60, 460 P.2d at267. This Court has held in a number of cases that the party seeking summary judgment has the initial burden of showing absence of any issueof material factremaining, and then the burden passes to the opposition to raise such material issue of fact. See, DeWinter v. Capp Homes, Inc. (1973), 162Mont. 19, 507 P.2d 1061. For the reasons stated the decision of the 

### District Court is affirmed.

### We 

### concur:

Justices

### Mr. Chief JusticeFrank I. 

### Haswell dissenting: I 

### dissent. Inmy view ajury questionexistsregarding 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 summaryjudgment todefendants. However, thiscase is 

### distinguishable on its

### factsfromMang. InMang therewas 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 firepresently exists and will 

### continue toexist so long asthe coal gobpilecontinues to burn." Mundie also concurred with the briefing papers of theAssistant 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 tobe decided by thejury of whether defendants could have reasonably foreseen plaintiffs' damages fromthe smoldering gobpile. I 

### would reverse for a trialon themerits. 

# ~4$..WW 4 Chief Justlce

### I concur 

### in the foregoing dissent of Chief Justice Haswell.