No. 88-433 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

DALE E. GUENTHER and DORIS H. 

GIJENTHER , Plaintiffs and Appellants, 

-vsDONALD L. FINLEY and PAULINE E. 

FINLEY, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hedman, Hileman & Lacosta; Donald E. Hedman, Whitefish, 

Montana 

For Respondent: 

Gary R. Christiansen, Kalispell, Montana 

Fj. led. t 

Submitted on Briefs: Feb. 9, 1989 

Decided: March 14, 1989 

B 

" Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

The decision of the District Court of the Eleventh 

Judicial District was appealed by the plaintiffs Guenther 

from the jury verdict in favor of the defendants Finley 

denying the plaintiffs' claim for trespass and damages. The 

Guenthers claim that the defendants' dam caused water to back 

onto the property of the plaintiffs for a number of years, 

causing extensive damage to the land and destroying the 

habitability of plaintiffs' home. 

The issue is whether substantial credible evidence 

exists to support the jury verdict rendered in this case. 

Plaintiffs bought .75 acre in 1962. Defendants purchased their property south of the plaintiffs' property in 

July 1980. The two properties are adjacent to each other and 

divided by Elk Park Road, a Flathead County Road. Mooring 

Creek runs north to south through both properties. The 

county maintains a culvert which runs under the county road. 

Baltrusch, an owner prior to the defendants Finley, 

constructed a dam on the property now owned by the defendants. The dam causes the water from Mooring Creek to back 

up onto defendants' property. 

Plaintiffs allege that the dam has caused the water to 

back onto their property upstream, causing a trespass. 

According to Guenthers, prior to the time that the dam was 

built on the Finleys' property, the land owned by the 

Guenthers was appraised at $40,000 to $50,000 and was "the 

prettiest little place I ever saw." Subsequently, though, 

the dam has caused flooding of the appellants' land, creating 

swamp-like conditions and making the land and house completely uninhabitable. Some of the problems allegedly caused by 

the flooding are cattails that are out of control, problems 
with spiders and worms and mosquitoes, damage to the house 

from the proximity of the water, and a sewer-like smell. 

Appellants contend that flooding occurred on their 

property in 1979, 1980, 1984, 1985, and 1986. In 1979 when 

the flooding occurred, Guenthers called the county complaining that the culvert was plugged with shale rock. The county 

cleaned out the culvert. In 1980, Guenther alleged that he 

called the owner of the property now owned by defendants, 

Raltrusch, to complain and the water problem thereafter 

disappeared. Appellants assumed that Baltrusch took some 

remedial action but did not follow up on their complaint and 

so do not really know. 

In three of the next six years, appellants claim there 

was a flooding problem; however, they never went to the 

Finleys to speak with them. In 1985, the renter of the 

Guenther property had a problem with flooding and called the 

county to have the problem remedied. Not until April 8, 

1986, did the Guenthers go directly to the Finleys, believing 

that the dam which had been in existence since 1980 could 

have been the cause of the flooding. At that time, Dale 

Guenther did not go to see defendants to discuss the issue 

but was found on the Finleys' property by Donald Finley 

looking at the area near Elk Park Road. Upon confronting 

Guenther and his attorney, defendant was asked if the Finleys 

would buy the Guenthers' property. Prior to this there had 

been no indication that the spring flooding of Guenthers' 

property was caused by the dam on the property owned by 

Finleys. 

The dam, which was constructed in 1980, was not altered 

after the initial construction by Baltrusch. Nor were any 

changes or additions made by the Finleys. 

The issue with which this Court is faced is whether 

there was substantial credible evidence from which the jury 
could make a proper determination in this case. We hold that 

there was such substantial credible evidence. 

There is some dispute as to what role the culvert 

played in the flooding of appellants' property. The culvert 

is built off the ground. Respondents' expert testified that 

the height of water on appellants' land would have to reach a 

depth of 1.25 feet before it reached the bottom of the culvert allowing the water to drain. The culvert is eighteen 

inches in diameter. During the winter and spring the culvert 

easily dams with mud, muck, ice, gravel, shale, and silt. 

When the expert for the respondents observed the culvert, it 

was plugged to ten inches of the eighteen. In this respect, 

according to respondents, the culvert itself acts as a dam. 

Any water on the Guenthers' property would have to reach the 

height of over 1.25 feet before it would drain from the 

property downstream to the Finleys' property. Furthermore, 

the water level on the appellants' property was .11 feet 

higher than on the respondents' property when measurements 

were taken in 1986, making flooding of appellants' property 

from respondents' dam unlikely. 

Appellants, on the other hand, contend that there is a 

difference of 2.45 feet between the top of the dam's spillway 

and the bottom of the culvert. Naturally, therefore, any 

time that the water reaches the spillway, water will flood 

the appellants' land by way of the culvert. In past years 

water has reached the spillway. Also, because the law of 

physics demands that "water seeks its own level," the level 

of water on the Finleys' property and the level of the water 

on the Guenthers' property must he the same height. Therefore, any time that the water is dammed on the Finley property, raising the natural water level, the water is the same 

height on the Guenther property and the water is trapped on 

the Guenther property, creating a trespass. 
The facts set forth by appellants, in their view, 

clearly show evidence of a trespass and damages. Restatement 

(Second) of Torts, S 158, properly sets out the elements of 

the tort of intentional trespass to real property: 

One is subject to liability to another 

for trespass, irrespective of whether he 

thereby causes harm to any legally 

protected interest of the other, if he 

intentionally (a) enters land in the 

possession of the other, or causes a 

thing or a third person to do so, or (b) 

remains on the land, or ((1) fails to 

remove from the land a thing which he is 

under a duty to remove. 

We adopted Restatement S 158 in Branstetter v. Beaumont 

Supper Club, Inc. (Mont. 1986), 727 P.2d 933, 43 St.Rep. 

1981, relying also on the Restatement's definition of "intent" "to denote that the actor desires to cause the consequences of his act, or that he believes that the consequences 

are substantially certain to result from it." Branstetter, 

727 P.2d at 935, 43 St.Rep. at 1983-1984, quotinq Restatement 

(Second) of Torts, S 8A. 

Because the dam was built before the Finleys purchased 

their property, it is clear that they did not intentionally 

cause any water to enter Guenthers' land. Furthermore, the 

jury found that after reviewing the conflicting evidence, the 

Finleys were not liable for intentional trespass. Assuming 

arguendo that respondents caused the flooding of appellants' 

land, there is still no showing that they recklessly or 

negligently caused. the consequences which resulted in the 

flooding. 

Restatement (Second) of Torts, 5 165, states: 

One who recklessly or negligently, or as 

a result of an abnormally dangerous 

activity, enters land in the possession 

of another or causes a thing or third 

person so to enter is subject to 
liability to the possessor if, but only 

if, his presence or the presence of the 

thing or the third person upon the land 

causes harm to the land, to the possessor, or to a thing or a third person in 

whose security the possessor has a 

legally protected interest. 

The jury instruction adopted by the District Court was as 

follows: 

You are instructed that a person may be 

subject to liability for trespass if he 

enters land in the possession of the 

other, or causes a thing, such as water, 

to do so or fails to remove from the 

land a thing, such as water, which he is 

under a duty to remove. 

If you find that Defendants' trespassed 

on Plaintiffs' land then you must determine what damages, if any, have been 

sustained and award them an amount which 

will reasonably compensate them in 

accordance with these instructions. 

The foregoing instructions clearly discussed the Restatement application of reckless or negligent trespass. 

After reviewing the evidence presented before them, the 

jury found that there had been no trespass by the respondents 

and that consequently there were no damages. Upon motion by 

the appellants for a judgment NOV, the District Court denied 

the motion, relying on the findings of the jury. 

While there may be some question whether the flooding 

of appellants' land was caused by respondents, it is within 

the province of the jury to decide in whose favor the evidence lies. In the order of the District Court denying the 

motion for judgment NOV, Judge Erickson stated that the court 

was satisfied that the dam on the respondents' property had 

the potential for flooding the appellants' property if filled 

to the level. of the spillway. However, the factfinder found 
that there was no trespass here. Moreover, there was evidence that the prior flooding of appellants' property may 

have occurred from the existence of blockage in the culvert. 

The jury decided that from the evidence offered they were not 

convinced that the existence of respondents' dam caused any 

damage to appellants. 

In reviewing the judgment of the trier of fact, the 

standard of review is: 

where a fact issue or issues are presented before either a court sitting 

alone, or with a jury, and there is 

substantial evidence to support the 

findings of the court or the jury verdict, such findings or verdict are 

conclusive on appeal. 

Johnson v. St. Patrick's Hospital (1968), 152 Mont. 300, 307, 

448 P.2d 729, 732-733; Matter of Estate of Holm (19791, 179 

Mont. 375, 588 P.2d 531; Big Sky Livestock, Inc. v. Herzog 

(1976), 171 Mont. 409, 558 P.2d 1107. There is substantial 

evidence here to support the jury verdict. 

We concur: