No. 91-196 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

CHRIS L. ALEXANDER and SUSAN M. ALEXANDER, 

husband and wife; CHERYL BARNES; PHILLIP M. 

DALE and MARY ANN DALE, husband and Wife; 

JANET I. DOUGHERTY; JAMES H. DUNN and 

ELEANOR DUNN, husband and wife; DAVID H. 

KIRSCH and RHONDA L. KIRSCH, husband and 

wife; JANET E. LEWIS; MATHEW G. SALMINEN 

and BECKY J. SALMINEN, husband and wife; 

DEBORAH M. (PRECHTL) SCOVILLE; and pjL. EDWARD WILKINSON and RUTH MAE WILKINSON, 

husband and wife, Ab 

Plaintiffs and Appellants, 

jB 

A01; 2 7 '1991 

V. 

EDWARD K. McCAULEY and ANITA L. 

McCAULEY, husband and wife, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

David N. Hull, Attorney at Law, Helena, Montana 

For Respondents: 

Paul B. Smith, Attorney at Law, Boulder, Montana 

Filed: 

Submitted on Briefs: July 2, 1991 

Decided: August 27, 1991 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Plaintiffs appeal from the decision of the District Court of 

the Fifth Judicial District for Jefferson County, granting the 

defendants' motion for summary judgment. We affirm the District 

Court. 

The sole issue for our determination is whether the District 

Court erred in granting the defendants' motion for summary 

judgment . 

Appellants in this action are homeowners in the city of 

Boulder, Montana. Edward and Anita McCauley are owners of an 

irrigation ditch running from the Boulder River through the town. 

The McCauleys acquired their ditch and water rights on April 14, 

1988, from their predecessor, B. W. Phelan. Edward McCauley first 

diverted water from the Boulder River into the ditch on May 9, 

1988. However, Phelan had been doing so since 1946, and the ditch 

had been similarly used since at least 1888. 

United States Soil Conservation Service Central Forecast 

records show that between May 27 and 31, 1988, 2.55 inches of rain 

fell in the Boulder vicinity. A May 30 storm dropped 1.17 inches 

of rain, the largest precipitation event in five years. On May 30 

or 31, many Boulder residents' basements flooded. The parties 

agree that the flooding resulted from subsurface seepage and not 

from surface water. 

From the time that defendants acquired their water rights in 

April 1988, until the flooding occurred, no work was done on the 

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ditch other than normal maintenance to clear obstructions within 

the ditch. On June 5 or 6, 1988, the defendants placed straw bales 

at the point of their diversion of the Boulder River to increase 

flow and hold the ditch banks steady while work was done on the 

headgate and a culvert. The defendants restored the headgate to 

its pre-1981 level and dredged portions of the ditch on June 9, 

1988. 

Water level data compiled during April to July 1988 showed a 

15 to 20 foot rise in several town wells. On June 27, 1988, an 

additional valve to an outfall line was opened into the Boulder 

sewage lagoon system. The Town Administrator testified that the 

water level in several sewer manholes dropped four to five feet 

within one hour. During the late evening of June 27 and the 

morning of June 28, 1988, Edward McCauley shut down his ditch by 

placing boards and a tarpaulin across the ditch. The barrier 

remained in place until July 7, 1988. Water levels in many of the 

affected homes went down or dissipated completely over the next few 

days. 

The homeowners filed suit on July 20, 1989, alleging that 

defendants negligently caused excessive water to flow through the 

ditch resulting in ground saturation and the eventual flooding of 

their properties. Extensive discovery took place, and McCauleys 

eventually moved for summary judgment. Briefs were submitted, and 

the District Court thereafter granted defendants' motion for 

summary judgment. In its order, the District Court found that the 

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record disclosed no genuine issues of material fact "in light of 

long established legal principles of water and ditch right law of 

this state." The court stated that (1) because the situation 

giving rise to the complaint existed for over 50 years, prior to 

homeowners' acquisition of their property, § 85-7-2212, MCA, 

entitled the defendants to immunity: and (2) the ditch owners are 

entitled to summary judgment under the rationale of Thelen v. City 

of Billings (1989), 238 Mont. 82, 776 P.2d 528, since the 

homeowners were unable to show that the damage to their property 

was proximately caused by the ditch owners. This appeal followed. 

We find that 5 85-7-2212, MCA, is dispositive of plaintiffs' 

appeal. That section reads in pertinent part: 

An irrigation district or private person or entity owning 

or operating irrigation ditches is not liable for: 

(1) personal injury or property damage resulting from 

floodwaters caused by rainfall or other weather 

conditions or acts of nature: 

(2) personal injury or property damage occurring on 

another's land and caused by water seepage that existed 

or began before the injured person first arrived on or 

obtained an interest in the land or before the damaged 

property was first placed on the land, if the seepage 

does not carry toxic chemicals onto the land . . . . 

Homeowners assert that there was no seepage before the current 

ditch owners overused the ditch. However, none of the homeowners 

acquired an interest in their land prior to 1970, and prior owners 

in the area stated in affidavits that homes in that area suffered 

from subsurface seepage as far back as 1935. The ditch had been 

used in its present form long before 1935. In this case, even if 

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the damage to plaintiffs' basements was contributed to by defendants' 

ditch, the undisputed facts establish that it was either because of 

weather conditions or the same kind of seepage that had existed for 

at least 53 years before the plaintiffs arrived or obtained an 

interest in the land. Under either circumstance, plaintiffs' cause 

of action is barred by 5 85-7-2212(2), MCA. 

Accordingly, we affirm the judgment of the District Court. 

/4 We concur: 

Jfist ice / 

5 
August 27, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

David N. Hull 

Attorney at Law 

P.O. Box 534 

Helena, MT 59624 

Paul B. Smith 

Attorney at Law 

P.O. Box 565 

Boulder, MT 59632 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

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