No. 87-62

IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

THE STATE OF MONTANA,ACTING BYAND THROUGH THEDEPARTMETN OF HIGHWAYS OF THE STATE OF MONTANA, Plaintiffsand Respondents,-vsTHOMASM. FEENAN and ROBERT G. FEENAN, as tenants incommon, JANEDOEFEENAN,aswife of THOMASM. FEENAN;JANEROE FEENAN, as wife of ROBERT G. FEENAN, Defendants and Appellants.

APPEAL FROM: TheDistrict Court of the Eleventh JudicialDistrict, In and for the County ofFlathead, The Honorable Leif B. Erickson,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: McGarvey, Heberling, Sullivan & McGarvey; Allan M. McGarvey argued, Kalispell,Montana

For Respondent:

W. D. Hutchison argued, Dept. of Highways, Helena, Montana

Submitted: October 27, 1987 Decided: March 25, 1988
Filed: ?--
,. ?t; ->

_,--._"-~~"-'Mr. Justice William E. Hunt, Sr.

### , delivered the Opinion of the Court.

This action arose from a condemnation of appellants' property which adjoins U.S Highway 40 which is now U.S. IIiqhway 2 near Columbia Falls, Montana. The Feenans appeal from the judgment of the District Court, Eleventh Judicial District, Flathead County. Judgment was entered after a

seven day trial inwhich the jury awarded appellants $16,500 for 2.04 acres of land as "damages for property taken." The jury awarded Feenans nothing for "damages or depreciation in the market value of the remainingproperty." We reverseand remand for retrial. The issue presented for our review in this appeal is whether the District Courtproperly instructed the jury as to the application of the common enemy doctrine to the State of Montana as condemnor. The Feenans own property on both sides of U.S. Highway 2. In 1981, 2.04 acres of a 240 acre tract were condemned in order to expand the road from two to four lanes. The 240 acre tract was being used for agricultural purposes on the date of taking, but had been appraised as suitable for residentialusewith commercialpotential. The Feenans claim that flooding caused by the construction of the new highway has rendered the remainderof their propertywhich borders on the new highway unsuitable for commercialuse. They wish to recover damages for these lands. Most facts in this case, as to the cause, effect and extent of flooding,are disputed by theparties. The Feenanproperty is located approximately $ mile west of Trumbull Creek where the creek crosses the highway. On the north side of the highway there was a barrow pit which bordered the Feenan property. In May, 1979, Trumbull Creek

### flooded in a 50 

### year magnitude flood. The floodwaters exceeded the carrying capacity of the barrow pit, causing considerable flooding on the Feenan property north of the highway. South of the highway, the creek had been artificially channeled. The southern creek bed had become constricted with the growth of vegetation over the years. Eachparty furnishedexpert testimonyby hydraulic engineers. The experts testified that the flow of water in Trumbull Creek south of the highway was and is insufficient to carry the estimated 50 

### year floodwaters either before or after construction of the new highway. The Feenanproperty south of the highway was not affected by the 1979 floodwaters. At the time of the 1979 flood, the State cut through the old highway to the land south of the highway, diverting the floodwaters north of the highway to the land south of the highway. These cuts were later replaced by culverts which the Feenans allege substantially reduced the potential floodingof the Feenans'property north of thehighway, while stillnot affecting their southern land. In constructing the new, expanded highway in 1984, new culvertswere put in new locations under the road. Also one large culvert was replaced, rerouting an old culvert which bent at a right angle under the highway with a larger, straight one. The new culvert empties directly into the southern channel of Trumbull Creek,allegedly causing erosion to the creek's western bank and increasing the danger of flooding on the Feenan property south of the highway. The barrow pit on the northern edge of the old highway was replacedby a shallowditch,allegedly increasing the chances that future floodwaters will extend further north on the Feenans' northern property. However, the State

### 's expert testified that the new culvert would adequately carry the 50year floodwaters from the north side of the highway to the south side,eliminating flooding on thenorthern side. Trumbull Creek has not flooded the property in question since the four lane highway was constructed,but the Feenans contends that the value of their commercially valuable land has depreciated due to constructionofU.S. Highway 2 and the consequential future flooding of theirproperty. The Feenans allege that they are entitled to damages for their property's devaluation. Appellants do not argue with the condemnation amount of $16,500 awarded to themby the jury. They contend that they are also entitled to compensatory damages for the depreciated value of their property caused by flooding which was exacerbated and altered by the construction of U.S. Highway 2. They argue that the doctrine of "common enemy" and "reasonable construction," which are applicable to neighboring private landowners, cannot be used to limit liability of a state agency from its constitutionalduty to pay just compensation for property taken or damaged in the exerciseof its power of eminentdomain. Art. 11, $? 29, 1972 Montana Constitution. The common enemy doctrine provides that a landowner is not liable for vagrant surface waters which cross his land and go onto his neighbor's land. That water is the common enemy ofboth landowners. Roopv. Anaconda (1972),159 Mont. 28, 494P.2d 922. Indiverting suchwaters, the landowner is limited to reasonable care in avoiding damage to adjoining property. O'Hare v. Johnson (1944),116 Mont. 410, 153 P.2d 888. The land in questionwas appraisedby appellants' expert as worth $6,600 to $7,500 per acre before flooding. After taking, due to flooding restrictions,the appraiser estimated the land tobe worth only $2,000per acre.Appellants specificallyargue that two jury instructions offered, but not given by the court deprived them of presenting their contentions and possible jury argument on the instructions. See Tacke v. Vermeer ~anufacturingCo.

(Mont. 1986), 713 P.2d 527, 43 St.Rep. 123. Instruction D-25 was offered by the Feenans for the purpose of instructing the jury as to a landowner's duty to their neighbors when constructing ditches or altering the flow of vagrant surface waters to alleviate flooding caused by highway reconstruction. D-25 read: An uphill landowner owes no duty to his downhill neighbor to prevent the encroachment of surface waters from his property onto his neighbor's. However, a landowner who actively diverts waters must act reasonably in consideration of the foreseeability of injury to the neighbor's property and the amountof injury thereto. The lawdoes not countenance the principal that one tract of land may be reclaimed at the expense of the destruction of anotherwithout just compensation.
The court read all but the last sentence of this instructionto the jury. Appellants contend thatby removing the last sentence of this instruction, the court erroneously instructed the jury that 

### any landowner, including a condemning agency, could take any reasonable measures to divert floodwaters without paying just compensation. The court then refused to read the Feenans' proposed instruction no. D-28, on the basis that D-25 covered the Feenans' contentions relating to the flooding issue. The Feenans' proposed instructionno. D-28read: You are instructed that if reconstruction by Plaintiff has caused a condition which has orwill produce intermittent but inevitable recurring flooding, then Defendants should be justly compensated by said Plaintiffs, or Plaintiff for the depreciation if any, to the fair market value ofDefendants'property resultingtherefrom.Appellants allege that due to these erroneous omissions in the instructionspresented to the jury, the jury ignored the loss in fairmarket value of the Feenans' property upon a finding that the State's highway constructionand divergence of the floodwater was reasonable. We agree with appellants1 argument. Art. 11, § 29 of the Montana Constitution states: Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner.. 

# . . This clauseof our Constitutiondistinguishes land sales from condemnation proceedings. It distinguishes a sale between private landowners from a "taking" between a condemningagency and a private landowner. The leading Montana case which comes closest to addressing the issue at hand is State Highway Commission v. Biastoch Meats, Inc. (1965),145 Mont. 261, 400P.2d 274. In Biastoch, the State condemned privateproperty around ameat packing plant tobuild a highway. The resulting construction eliminated a drainage channel, completely blocking the natural flowof a creek. The new channelwas diked causing a flood basin that inundated the packing plant. This Court held that the State acted unreasonably in this instance and the Biastocks were awarded compensation not only for the condemned land but also for the value of their business. The State contends that language inBiastoch extends the application of the common enemy doctrine to condemning agencies. We disagree. The relevant language in Biastoch cites OIHarev. Johnson (1945),116Mont. 410, 153 P.2d 888. OIHarecites languagewhich allows a landowners to change the flow of water on his property as long as it is not done with "malice or negligence." Newton 

### v. Weiler (1930), 87 Mont. 164, 286 P. 133. We do not see how malice or negligence isrelevant in this context,but hold as accurateas amatter of law the premise that 

### "[tlhe law does not countenance the principle that one tract of land may be reclaimed at the expense of the destruction of another without compensation"

(Cite omitted.) O'Hare, 116 Mont. at 418, 153 P.2d at 891. Although the Feenans' land is not being destroyed by the construction of the highway, there is evidence that periodic flooding reduced its value. The State, as a condemning agency, isheld to a standard ofpaying just compensation for land when the diversion of vagrant surface waters causes damage toprivate lands. Jury instructions given by the District Court did not adequately state the applicable law in this case. Instructionno. D-25was so confusing that it shouldnothave been given. Instructionno. D-28 should have been given. We hold that failure to give no. D-27 was reversible error. Reversed and remanded fora

We Concur:



# , Chief JusticeMr. Chief JusticeJ. A. Turnage,dissenting: Today the majority chooses to ignore the record,relevant Montana precedent and a jury's finding following a seven-day trial. In doing so, the majority reverses the jury's finding based on the District Court's handling of two jury instructions. The objectionable instructions merely

serve the majority as a conduit to rule on this issue as it pleases. Accordingly, Idissent. A review of the record reveals that, sometimeprior to 1979,Trumbull Creek was relocated from its natural banks to its present location. Trumbull Creek's present man-made channel is not sufficient to contain the Creek during a "50 year flood." Such a flood occurred in 1979. Trumbull Creek's carrying capacity is further hampered by excessive vegetation growth along its banks. Experts for both sides agree that Trumbull Creek's carrying capacity is limited to 90 to 120 cfs. In 1979,the spring runoff, estimated at 330 cfs., wasmuch greater than Trumbull Creek's carrying capacity,causing the creek to flood. Unfortunately for appellant State of Montana, Highway 40 runs through the above-mentioned flood plain. The State responded to the 1979 flood,duringhighway reconstruction in 1984, by placing four culverts under Highway 40 and by replacing Trumbull Creek's passage under the highway with a larger culvert. The State's action caused TrumbullCreek and its flood waters to pass under the roadway. At trial the State argued that its action was not the cause of the flooding; rather, it was the proper and reasonable action in response to the flooding. The jury agreed that the State acted reasonably. See OIHarev. Johnson (1944), 116 Mont. 410, 419, 153 P.2d 888, 891. Appellants argue that the "common enemy doctrine" and "reasonable construction," which are applicable toneighboring private landowners, cannot be used to limit liability of the state from its constitutional duty to pay just compensation for property taken or damaged through eminentdomain. The majority,without so stating,apparently agrees with appellants' contention. The majority's position should fail for the following

reason. In its opinion the majority states: "In diverting such waters, the landowner is limited to reasonable care in 

### -- avoiding damage 

### - to adjoininq 

### property. 0'Hare v. Johnson (1944), 116 Mont. 410, 153 P.2d 888." The majority then distinguishes State Highway Commission v. Biastoch Meats, Inc. (1965),145Mont. 261, 270, 400 P.2d 274, 278-279, which holds that the common enemy doctrine allows a condemning agency to change the flowofwater onhisproperty as long as it is not done with "malice or negligence.

### " The majority conveniently ignores that Biastoch isbased onOtHare. Next, the majority holds the DistrictCourt erred when it amended jury instruction D-25 to the point that D-25 "was

so confusing that it shouldnothave been given." InstructionD-25,as amended,provides: An uphill landowner owes no duty to his downhill neighbor to prevent the encroachment of surface waters from the property onto his neighbor's. However, a landowner who actively diverts waters must act reasonably in consideration of the foreseeability of injury to the neighbor's property and the amount of injury thereto. Appellants did not objectwhen theDistrictCourt gave amended Instruction D-25. After reading D-25, it is my opinion that the majority is overreaching to find reversible error. The majority also objects to the District Court's refusal to give jury instruction D-28. Instruction D-28,offered by appellants without citation of authority, provides: You are instructed that if reconstructionby Plaintiff has caused a condition which has or will produce intermittent but inevitable recurring flooding, then Defendants should be justly compensated by said Plaintiffs,or Plaintiff for the depreciation if any, to the fair market value of Defendants' property resulting therefrom. Instruction D-28 was more properly stated by Instructions D-3 and D-4,which provide: [InstructionD-3.1 The Constitution of the State of Montana provides that private property shall not be taken or damaged for public use without just compensation to the full extent of the loss being paid to the owners. [InstructionD-4.1 You are instructed that you should award the defendant as just compensation:


### 1. the correct fairmarket value of the property actually taken;and,
2. if the property actually taken is part of a larger parcel, the depreciation in current fair market value, if any, which will accrue to the portion not taken by reason of its severance from the portion taken by the construction of the highway in the manner proposed by plaintiff. InstructionD-3 instructed the jury that respondent is liable for private property taken without just compensation. Instruction D-4 instructed the jury that just compensation includes fair market value and land value depreciation. Instructions D-3 and D-4 properly instructed the jury based

on the Biastoch-O'Hare rule and Article 11, Section 29, 1972 Mont. Const.In summary, it is my opinion that the majority has sought to ignore Montana precedent that the common enemy doctrine applies to condemning agencies. The issue at hand is now being sent back to the District Court to speculate what damages appellants might incur when the next "50 year flood"brings itsrunoff. Imust disagree with themajority's decision to ignore the record, relevant Montana precedent and the jury's finding.

Mr. JusticeL. C. Gulbrandson:

I concur in the foregoingdissent of Mr. Chief Justice Turnage.