No 

No. 98-215

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 77

294 Mont. 76

979 P.2d 1275

SALLY A. BARNES, 

Plaintiff and Appellant,

v.

CITY OF THOMPSON FALLS, 

Defendant and Respondent.

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APPEAL FROM: District Court of the Twentieth Judicial District,

In and for the County of Sanders,

The Honorable C.B. McNeil, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Linda M. Deola; Reynolds, Motl & Sherwood, Helena, Montana

For Respondent:

Mark S. Williams; Williams & Ranney, Missoula, Montana

Submitted on Briefs: January 21, 1999

Decided: April 20, 1999

Filed:

__________________________________________

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Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1. Sally A. Barnes (Barnes) filed suit against the City of Thompson Falls (Thompson 

Falls) in the Twentieth Judicial District Court, Sanders County, alleging negligence 

and nuisance in relation to a 1996 flood that damaged her home. The District Court 

denied, over objection, Barnes' request to instruct the jury on nuisance. Barnes 

appeals. We affirm.

¶2. The sole issue on appeal is whether the District Court abused its discretion in 

refusing

Barnes' proposed jury instructions on nuisance.

Factual and Procedural Background

¶3. In 1978, Barnes purchased a duplex in Thompson Falls. The duplex was built in a 

low spot in Thompson Falls, and the basement door was virtually level with the alley 

behind the house. As a result, runoff from higher ground tended to drain towards 

Barnes' property and pool in the alley outside her basement door. Within six months 

of moving in, Barnes began to experience flooding problems in the basement of her 

duplex whenever significant rainfall occurred. At that time, Thompson Falls did not 

have a municipal storm sewer system.

¶4. To mitigate future flooding, Barnes constructed a small retaining wall in front of 

the basement door around 1980. Thompson Falls established a municipal sewer 

system in the early 1980s and, at that time, installed a storm drain in the alley behind 

Barnes' home. For a period of time, these measures prevented the flooding of Barnes' 

basement. However, regraveling of the alley over the years by Thomson Falls 

resulted in the height of the alley's surface rising, thereby lessening the margin of 

flood protection afforded by Barnes' retaining wall. Moreover, Barnes' flooding 

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problem was noticeably exacerbated when the State of Montana decided to expand 

Highway 200 through Thompson Falls. 

¶5. Due to the increased runoff, Barnes experienced flooding from a 1993 rainstorm 

more severe than anything she had previously endured. Barnes thus filed a complaint 

with Thompson Falls. In response, Thompson Falls replaced the existing storm drain 

line in the alley with a larger diameter line. Thompson Falls also chip-sealed the alley 

to help prevent sand and gravel from clogging the storm drain line. 

¶6. Despite these precautionary measures, on July 30, 1996, a brief but "very heavy 

rainstorm" in Thompson Falls caused the storm drain line to back-up. As a result, 

runoff pooled in the alley, flowed over Barnes' retaining wall, and flooded the 

basement of her duplex with three inches of caustic sludge. Barnes therefore filed suit 

against Thompson Falls, alleging that the city's sewer and storm drain system was 

negligently designed and maintained, and that the system also constituted a private 

nuisance. Thompson Falls argued in response that the flooding that occurred at 

Barnes' home in July of 1996 was not caused by the city's negligence, and that the 

city could not be held accountable under Barnes' theory of nuisance because its 

sewer and storm drain system was statutorily authorized. The District Court agreed 

with Thompson Falls and, accordingly, denied Barnes' request to instruct the jury on 

nuisance. Thus, the jury decided the case solely on the question of whether 

Thompson Falls was negligent, and found the city not liable. Other facts will be set 

forth as necessary. 

Discussion

¶7. Did the District Court abuse its discretion in refusing Barnes' proposed jury 

instructions on nuisance? 

¶8. The standard of review of a district court's refusal to give proffered jury 

instructions is whether the court abused its discretion. Harwood v. Glacier Elec. Coop., Inc. (1997), 285 Mont. 481, 487, 949 P.2d 651, 655. A trial court is imbued with 

broad discretion to determine whether or not it will give a proposed instruction to 

the jury, and this Court will not overturn a district court on the basis of alleged 

instructional errors absent an abuse of that discretion. Savik v. Entech, Inc. (1996), 

278 Mont. 152, 158, 923 P.2d 1091, 1095.

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¶9. Barnes contends that the District Court abused its discretion when it ruled that 

she could not prevail on a claim of nuisance absent proof of negligence. Under the 

facts presented by this case, the District Court determined that Barnes' proposed 

jury instructions on nuisance were not an accurate statement of Montana law 

pursuant to § 27-30-101, MCA, which provides in part:

(1) Anything which is injurious to health, indecent or offensive to the senses, or an 

obstruction to the free use of property, so as to interfere with the comfortable enjoyment of 

life or property, . . . is a nuisance.

(2) Nothing which is done or maintained under the express authority of a statute can be 

deemed a nuisance. [Emphasis added.]

Section 27-30-101(1), (2), MCA.

¶10. As Thompson Falls points out, the nuisance alleged by Barnes is the city's sewer 

and storm drain system, which is specifically authorized by statute. See § 7-13-4301, 

MCA (statutory authorization for a city or town to establish sewage and water 

systems). Accordingly, Thompson Falls argues that since the city's storm drain 

system is expressly authorized by statute, Barnes can only prevail on her theory of 

nuisance against Thompson Falls by proving negligence. We agree. 

¶11. Barnes relies upon Wilhelm v. City of Great Falls (1987), 225 Mont. 251, 732 

P.2d 1315, wherein this Court held, in part, that "[u]nder the statutory definition of 

nuisance at § 27-30-101, MCA, a nuisance can exist without negligence." Wilhelm, 

225 Mont. at 261-62, 732 P.2d at 1322. Pursuant to this holding, Barnes requested 

that the District Court instruct the jury as follows: 

[Barnes] is not required to prove under this theory [of nuisance] that [Thompson Falls] 

acted negligently. Negligence of [Thompson Falls] in this case is immaterial in 

determining liability and is a separate claim from nuisance. A nuisance can exist without 

negligence. 

¶12. Wilhelm involved a nuisance action arising out a city's alleged negligent 

operation of a statutorily authorized landfill. Instruction 21 in Wilhelm instructed the 

jury that it could find a nuisance, notwithstanding the fact that the landfill was 

statutorily authorized, if it found that the landfill was either " 'wholly unauthorized' 

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" or " 'negligently done.' " See Wilhelm, 225 Mont. at 261, 732 P.2d at 1321. 

Following trial, the jury returned a verdict that the city's landfill constituted a 

nuisance, but that the nuisance was not caused by the city's negligence. According to 

this verdict, the District Court entered judgment for the city. See Wilhelm, 225 Mont. 

at 255, 732 P.2d at 1317. The plaintiffs in Wilhelm appealed and this Court affirmed.

¶13. In rejecting the plaintiffs' arguments on appeal, this Court held that Instruction 

21 in Wilhelm was an accurate statement of Montana law because it allowed the jury 

"to find a nuisance if the act done was wholly unauthorized or negligently done." 

Wilhelm, 225 Mont. at 261, 732 P.2d at 1322. Thus, since the landfill in question was 

statutorily authorized, the plaintiffs in Wilhelm, in order to prevail, were required to 

prove that the acts complained of were either wholly outside of the statutory 

authorization or so negligently performed as to constitute a nuisance. 

¶14. Regrettably, as this case illustrates, the Wilhelm decision is not as clear as it 

should have been. The lack of clarity in Wilhelm is due in large part to this Court's 

failure to expressly discuss how the first two subsections of § 27-30-101, MCA, 

interface with each other under general principles of nuisance law. We determine 

that although this Court reached the right result in Wilhelm, our analysis of the jury 

instructions in that case without an express discussion of § 27-30-101(2), MCA, is 

likely to breed more confusion than clarity. Accordingly, we take this opportunity to 

clarify the law of nuisance in Montana as it relates to statutorily authorized activities 

or facilities. 

¶15. This Court in Wilhelm, without expressly referring to § 27-30-101(2), MCA, 

implicitly recognized the distinction between an absolute nuisance, in which 

negligence is immaterial, and a qualified nuisance, which is predicated upon 

negligence. See Wilhelm, 225 Mont. at 256, 732 P.2d at 1318, quoting 58 Am. Jur. 2d 

Nuisances § 221 (1971) (holding that, " 'where a nuisance has its origin in negligence, 

as distinguished from an absolute nuisance,' " contributory negligence can constitute 

a defense). This distinction is crucial to understanding both the proper application of 

§ 27-30-101, MCA, as well as the result reached in Wilhelm.

(1)

¶16. A nuisance action may be based upon conduct of a defendant that is either 

intentional, negligent, reckless, or ultrahazardous. Thus, "negligence is merely one 

type of conduct upon which liability for nuisance may be based." 58 Am. Jur. 2d 

Nuisances § 9 (1989) (footnote omitted). This was the case in Wilhelm, where the 

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plaintiffs claimed "that the nuisance ha[d] its origins in [the city's] negligence." 

Wilhelm, 225 Mont. at 256, 732 P.2d at 1318. 

¶17. In general, nuisances may be classified as either a nuisance per se or at law, or as 

a nuisance per accidens or in fact. A nuisance per se or at law is an inherently 

injurious act, occupation, or structure that is a nuisance at all times and under any 

circumstances, without regard to location or surroundings, while a nuisance per 

accidens or in fact is one which becomes a nuisance by virtue of circumstances and 

surroundings. See 66 C.J.S. Nuisances § 5 (1998).

¶18. In turn, nuisances may be classified as either absolute or qualified. An absolute 

nuisance is often referred to as the same thing as a nuisance per se, and is defined as 

a nuisance, "the substance . . . of which is not negligence, which obviously exposes 

another to probable injury." 66 C.J.S. Nuisances § 3 (1998) (footnote omitted). A 

qualified nuisance, on the other hand, is a "nuisance dependent on negligence [that] 

consists of anything lawfully but so negligently or carelessly done or permitted as to 

create a potential and unreasonable risk of harm, which, in due course, results in 

injury to another." 66 C.J.S. Nuisances § 3 (1998) (footnote omitted). 

¶19. How, then, can a plaintiff bring a nuisance action against a defendant engaged 

in a statutorily authorized endeavor when § 27-30-101(2), MCA, indicates that such 

activities or facilities shall not "be deemed a nuisance"? The starting point for our 

analysis is the historical source of this nuisance immunity defense. Section 27-30-101

(2), MCA, was borrowed verbatim from § 3482 of the California Civil Code, which 

provides: "Nothing which is done or maintained under the express authority of a 

statute can be deemed a nuisance." Cal. Civ. Code § 3482 (West 1997). When 

interpreting a statute borrowed from a sister state, this Court generally follows the 

construction placed on the statute by the highest court of the state from which it was 

adopted. Dew v. Dower (1993), 258 Mont. 114, 125-26, 852 P.2d 549, 556 (citing State 

v. Murphy (1977), 174 Mont. 307, 311, 570 P.2d 1103, 1105). 

¶20. The California Supreme Court, in interpreting the reach of the nuisance 

immunity defense afforded by § 3482, has consistently applied a narrow construction 

to the principle embodied therein:

"A statutory sanction cannot be pleaded in justification of acts which by the general rules 

of law constitute a nuisance, unless the acts complained of are authorized by the express 

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terms of the statute under which the justification is made, or by the plainest and most 

necessary implication from the powers expressly conferred, so that it can be fairly stated 

that the legislature contemplated the doing of the very act which occasions the injury."

Hassell v. City and County of San Francisco (Cal. 1938), 78 P.2d 1021, 1022-23, quoting

46 C.J. at 674.

¶21. The Hassell test of statutory authorization thus "requires a particularized 

assessment of each authorizing statute in relation to the act which constitutes the 

nuisance." Varjabedian v. City of Madera (Cal. 1977), 572 P.2d 43, 47 n.6. By 

requiring that the authorizing statute contain an express or necessarily implied 

authorization to do the very act which occasions injury, it is ensured that "an 

unequivocal legislative intent to sanction a nuisance will be effectuated, while 

avoiding the uncertainty that would result were every generally worded statute a 

source of undetermined immunity from nuisance liability." Varjabedian, 572 P.2d at 

47.

¶22. More importantly for the purposes of this case, the courts of California have 

concluded pursuant to the Hassell test that " 'although an activity authorized by 

statute cannot be a nuisance, the manner in which the activity is performed may 

constitute a nuisance.' " Greater Westchester v. City of Los Angeles (Cal. 1979), 603 

P.2d 1329, 1336, quoting Venuto v. Owens-Corning Fiberglass Corp. (Cal. App. 

1971), 99 Cal. Rptr. 350, 359. With respect to statutorily authorized activities or 

facilities, the authorities are in agreement that:

A lawful action may become a nuisance by reason of its negligent performance. Thus, 

there are certain situations in which what was lawful may be turned into a nuisance by 

negligence in maintenance, and in which the danger, being a continuing one, is often 

characterized as a nuisance, although dependent upon negligence, as in the case of a 

highway out of repair. Also, negligent use may make a structure a nuisance which would 

not be a nuisance otherwise.

58 Am. Jur. 2d Nuisances § 72 (1989) (footnotes omitted); see also 66 C.J.S. Nuisances

§ 15 (1998); 8 Thompson on Real Property, Thomas Edition § 67.05(b)(4), at 116 (David 

A. Thomas ed., 1994); see, e.g., Greer v. City of Lennox (S.D. 1961), 107 N.W.2d 337 

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(holding that a public dump cannot be a nuisance per se in view of the statutory authority 

to operate such facilities, but may become a private nuisance by virtue of a municipality 

failing to perform its statutory functions in a reasonable manner); Brown v. County 

Commissioners of Scioto County (Ohio App. 1993), 622 N.E.2d 1153 (holding that 

operation of a duly authorized sewage treatment plant could not be an absolute nuisance, 

but could be found to constitute a qualified nuisance predicated upon negligence). 

¶23. In other words, a statutorily authorized activity or facility cannot constitute an 

absolute nuisance as a matter of law, but, nonetheless, may become a qualified 

nuisance in fact "by reason of the improper or negligent manner in which it is 

conducted." 66 C.J.S. Nuisances § 15 (1998) (footnote omitted). We find this 

approach persuasive. When performing acts pursuant to statutory authority, an 

individual or entity must still act with due care, skill, and in conformity with 

legislative sanction. See 57 Am. Jur. 2d Municipal, County, School, and State Tort 

Liability § 164 (1988).

¶24. Thus, for the purpose of clarifying Wilhelm, "[a]bsent a predicate finding of 

negligence, there can be no finding of a qualified nuisance." 66 C.J.S. Nuisances § 3 

(1998) (footnote omitted); see also 58 Am. Jur. 2d Nuisances § 25 (1989) ("negligence 

must be averred and proven to warrant a recovery") (footnote omitted). In refusing 

Barnes' proposed jury instructions on nuisance, the District Court correctly 

concluded that this "Court, in upholding the verdict in [Wilhelm], required there still 

to be a finding by the jury of negligence." That is, since the jury in Wilhelm did not 

make a predicate finding of negligence, liability for nuisance did not attach to the 

defendant city's statutorily authorized acts. See Wilhelm, 225 Mont. at 255, 732 P.2d 

at 1317.

¶25. Under § 27-30-101(2), MCA, therefore, an activity or facility that is expressly 

authorized by the Montana Legislature cannot "be deemed a nuisance" as a matter 

of law pursuant to the statutory definition of nuisance found at § 27-30-101(1), MCA, 

unless the plaintiff can show, pursuant to a particularized assessment of the 

authorizing statute, that the defendant was acting wholly outside of its statutory 

authority. Furthermore, even assuming that a defendant's activity or facility falls 

within the exculpatory effect of § 27-30-101(2), MCA, a plaintiff may still claim a 

qualified nuisance against a defendant, like Thompson Falls, that is operating under 

express statutory authority, by averring negligent design, construction, operation, or 

maintenance. However, in bringing a qualified nuisance action, a plaintiff must do 

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more than simply plead the existence of the statutorily authorized activity or facility 

claimed to constitute a nuisance; such plaintiff must, in addition, plead and prove the 

defendant's negligence and the resulting "injurious" consequences of that activity or 

facility to plaintiff's "comfortable enjoyment of life or property." See § 27-30-101(1), 

MCA; see also Varjabedian, 572 P.2d at 47-48; 66 C.J.S. Nuisances § 5 (1998).

¶26. To recap, a statutorily authorized activity or facility cannot be a nuisance unless 

the plaintiff can show: (1) that the defendant completely exceeded its statutory 

authority, resulting in a nuisance; or (2) that the defendant was negligent in carrying 

out its statutory authority, resulting in a qualified nuisance. Thus, the plaintiffs in 

Wilhelm could have prevailed on their nuisance claim if the jury found either that the 

city was liable for a nuisance because it had acted entirely outside the scope of its 

legislatively authorized power in operating the landfill, or that the city was liable for 

a qualified nuisance because it had been negligent in its operation or maintenance of 

the landfill. Barnes could have likewise prevailed on her nuisance claim against 

Thompson Falls only by proving that the city was liable for a qualified nuisance, 

notwithstanding § 27-30-101(2), MCA, because it had been negligent in designing, 

constructing, operating, or maintaining the storm drain line, or by proving that the 

city had acted wholly outside of its statutory authority with respect to the storm 

drain line and was thus liable, in the absence of negligence, for a nuisance pursuant 

to the definition of § 27-30-101(1), MCA.

¶27. While it is generally true, as Barnes argues, that "a nuisance can exist without 

negligence," this rule is inapplicable to a situation like the one sub judice. Barnes 

does not dispute that Thompson Falls' sewer and storm drain system is statutorily 

authorized. Nor does Barnes specifically allege that Thompson Falls exceeded its 

statutory authority. Barnes attempts to evade the strictures of § 27-30-101(2), MCA, 

by arguing for the first time on appeal that the flooding, and not the storm drain, 

constitutes the nuisance and, accordingly, that Thompson Falls has no statutory 

authority to flood her property. This argument begs the question; it asks this Court 

to focus not on the activity or facility in question, but on its consequences. However, 

as a threshold matter under § 27-30-101(2), MCA, a court must first inquire 

pursuant to the particularized Hassell inquiry whether the activity or facility is 

authorized either by the express terms of the authorizing statute or by necessary 

implication therefrom. Once it is determined that the activity or facility falls within 

the immunizing effect of § 27-30-101(2), MCA, a plaintiff's only recourse is to then 

proceed on a qualified nuisance theory and prove negligence to warrant recovery. 

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¶28. Here, Barnes has not shown that the actions of Thompson Falls with respect to 

the storm drain line behind her house were wholly outside of its statutory authority. 

Since Thompson Falls' storm drain system was constructed and is maintained under 

the express authority of § 7-13-4301(1)(a), MCA, Barnes could only prevail on her 

nuisance claim by proving that Thompson Falls was negligent in its design, 

construction, operation, or maintenance of the storm drain line. 

¶29. Despite Thompson Falls' express statutory authority to operate its sewer and 

drain system, Barnes argues on appeal--as she argued at trial--that she is not 

required under Montana law to prove negligence in order to recover for nuisance. 

Barnes fixates on the holding in Wilhelm that "a nuisance can exist without 

negligence," a conclusion impliedly made in reference to the definition of nuisance 

found at § 27-30-101(1), MCA, while ignoring the plain language of the nuisance 

immunity defense afforded by § 27-30-101(2), MCA. However, as we have stated 

herein, § 27-30-101, MCA, must be read in its entirety. 

¶30. Under Barnes' theory, a plaintiff could circumvent § 27-30-101(2), MCA, by 

glossing over the fact that an activity or facility is statutorily authorized (e.g., the 

sewer and storm drain system) and focusing on the result (e.g., the flooding), arguing 

that any activity that results in injury to the plaintiff, whether statutorily authorized 

or not, is a nuisance. Barnes' position on appeal would have this Court, in effect, 

permit a nuisance action to be prima facie actionable against a defendant operating 

under express statutory authority regardless of any proof that the defendant was 

negligent in acting upon that statutory authority and, in so doing, to disregard the 

meaning of the nuisance immunity defense afforded by § 27-30-101(2), MCA. If we 

were to hold, as Barnes requests, that a statutorily authorized activity or facility can 

constitute a nuisance solely because it results in damage to the plaintiff, regardless of 

any negligence on the part of the defendant, this Court would effectively eviscerate 

the rule of § 27-30-101(2), MCA. 

¶31. According to the facts of this case, Barnes could have only brought a qualified 

nuisance action against Thompson Falls. Under a qualified nuisance theory, "[w]here 

the acts or omissions constituting negligence are the identical acts which allegedly 

gave rise to a cause of action for nuisance, the rules applicable to negligence will be 

applied." 58 Am. Jur. 2d Nuisances § 72 (1989) (footnote omitted). Thus, given the 

jury's verdict of no negligence, we must conclude that Thompson Falls was not 

negligent in its operation or maintenance of the storm drain line behind Barnes' 

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duplex and, thus, would not have been liable for a qualified nuisance due to the 

incidental flooding of Barnes property in 1996.

¶32. We hold that the District Court did not abuse its discretion in refusing Barnes' 

proposed jury instructions on nuisance, as they constituted a misstatement of 

Montana law.

¶33. Affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

1. 1 Some of the confusion of Wilhelm may be attributed to the fact that the law of nuisance is, itself, a muddle. 

The venerable Prosser long ago characterized the subject of nuisance as "a sort of legal garbage can," due in large 

part to a traditional definition of nuisance "broad enough to cover all conceivable torts." William L. Prosser, 

Nuisance Without Fault, 20 Tex. L. Rev. 399, 410 (1942). Later in his life, Prosser thus opined that "[t]here is 

perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance.' " William 

L. Prosser, Handbook of the Law of Torts 571 (4th ed. 1971). 

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