NO. 84-418 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1.985 

CONNIE LIMRERHAND, Individually, and 

as Personal Representative of the 

Estate of JAYIjON LIMBERHAND, Deceased 

Minor, 

Plaintiff and Appellant, 

BIG DITCH COMPANY; CITY OF BILLINGS; 

KEN NICHOISON and ALLEN PJICHOLSON, each 

individually and d/b/a APPLE CREEK 

PROPERTY MANAGEMENT, INC., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Charles Luedke, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Paul. M. Warren argued, Billings, 

Montana 

For R.espondent : 

Crowley, Haughey, Hanson, Toole & Dietrich; Don Harris 

argued for Rig Ditch Co., Billings, Montana 

Keefer, Roybal, Hanson, Stacey & Jarussi; J. Dwaine 

Roybal argued for City of Billings, Billings, Montana 

Jardine, Stephenson, Blewett & Weaver; Lon T. Holden 

argued for Micholson, Great Falls, Montana 

For Amicus Curiae: 

Ted J. Doney for Mont. Water Development Assoc., 

Helena, Montana 

Submitted: IqaY 2, 1935 

~~~id~d: September 26, 1985 

Filed : 

Clerk 
Mr. Justice John C. Sheehy delivered. the Opinion of the 

Court. 

Appellant, Connie Limberhand, brought this action jn the 

District Court, Thirteenth Judicial District, Yell-owstone 

County, to recover damages for the alleged wrongful death of 

her 18-month-old son, Jaylon, who drowned in an irriqat-ion 

ditch. 

The irrigation ditch was a lateral from the main channel 

of the Big Ditch which was constructed early in this century 

by the Minnesota and Montana Land Improvement Company and 

subsequently acquired by the Big Ditch Company, which 

currently owns and operates the ditch and laterals. Rig 

Ditch Company owns the right-of-way where the ditches flow 

but it does not own the adiacent land. This particular 

lateral originates west of the City of Bill-ings and ends at 

Nina Clare Street, approximately one mile within the Billings 

city limits. Water from the ditch system, including the 

lateral, is used to irrigate agricultural and other lands. 

Apple Creek Apartments, an apartment complex owned and 

managed by Ken and Allen Nicholson, who do business under the 

various corporate names appearing above, are located on Lands 

which border the irrigation ditch where Jaylon Limberhand 

drowned on June 27, 1981. It appears from the record here, 

though not clearly (unfortunately, all the parties here have 

failed adequately to develop the applicable facts, and some 

of the facts herein stated are gleaned. from their briefs), 

that Apple Creek Apartments are located west of Rehberg Lane 

and west of a daycare center, which also abuts the irrigation 

ditch, and which is completely fenced. A fence separates the 

Apple Creek Apartments on the south side from other 
resid-ential property. Apple Creek Apartments consists of two 

buildings, one larger than the other and between the 

buildings and extending northward from one of them toward the 

ditch is a paved parking lot which abuts the ditch easement, 

perhaps within 30 feet of the irrigation ditch. 

As admitted by the Ni.cholsons, on the day of the 

accident, Connie Limberhand and her young son were guests of 

certain tenants residing at the Apple Creek Apartments. 

Jaylon Limberhand apparently wandered away from his mother, 

left the apartment where they were visiting, crossed the 

parking lot which separates the apartment complex from the 

ditch, and slipped or fell into the ditch. Jaylon survived 

for 1 day in the hospital. 

Plaintiff predicates liability as to the City of 

Billings on the grounds that the City, in the enforcement of 

its ordinances, failed to declare the open irrigation ditch 

here a public nuisance and to order the ditch closed. or other 

protective measures taken by Rig Ditch Company to prevent 

drowning accidents. 

Each of the named defendants moved the court for a 

summary judgment in their respective favors, and the District 

Court granted summary judgments as to all of the defendants. 

Connie Limberhand appeals to this Court from each 

summary judgment against her. She poses the following issues 

on appeal: 

1. With respect to Big Ditch Company the District Court 

erred in holding that: 

(a) Connie Limberhand had not met the elements of 

attractive nuisance as a basis of liability against Big 

Ditch. 
(b) Connie Limberhand did not state a cause of 

action in negligence against Big Ditch. 

(c) The City Ordinances place no additional d-uty 

or burden upon Big Ditch Company. 

2. With respect to the City of Billings, Connie 

Limberhand argues the District Court erred in holding that 

the City of Billings was under no duty to act and declare the 

irrigation ditch a nuisance and require implementation of 

protective devices. 

3. With respect to defendants Nicholsons, Connie 

Limberhand argues the District Court erred in holding that 

adjacent landowners owed no duty to the decedent to protect 

in anyway against drowning accidents on lands adjacent to the 

Nicholsons' land holdings. 

We affirm the summary judgment granted by the District 

Court in favor of the City of Billings. We reverse the 

summary judgments entered in favor of Big Ditch Company and 

the Nicholsons, and remand to the District Court for further 

proceedings in accord with this opinion. 

I. Big Ditch Company 

A. - Attractive Nuisance 

The doctrine of attractive nuisance is recognized in 

Montana and we have recognized the Restatement (Second) of 

Torts 339 as setting forth the elements necessary to 

establish an attractive nuisance. Big Man v. State (Mont. 

1981), 626 P.2d 235, 240, 38 St.Rep. 362, 368; Gagnier v. 

Curran Construction Company (1968) , 151 Mont. 468, 473, 474, 

443 P.2d 894, 897, 898; Driscoll v. Clark (1905), 32 Mont. 

172, 80 P. 1. Whether the doctrine of attractive nuisance 

should be applied to drowning incidents in irrigation ditches 

has not been clearly stated by us. 
Tt is true that in Fusselman v. Yellowstone Valley Land 

and Irrigation Co. (1917), 53 Mont. 254, 163 P. 473, this 

Court made reference to the elements of attractive nuisance 

in sustaining a directed verdict by the District Court 

against a plaintiff seeking damages for the drowning death in 

an irrigation ditch in Livingston of a three-year-old girl. 

In 1917, this Court was of the opinion that in a pleading for 

injuries received upon the defendant's property, the 

complaint must disclose by what right the injured party was 

upon the premises. In Fusselman, we held that because of the 

failure of the plaintiff to allege that the decedent was 

attracted to the canal or that by reason of its peculiar 

attractiveness, she went upon the canal and met her death, 

the complaint failed to state a cause of action under the 

doctrine of the turntable cases. 

In the case before us, Connie Limberhand contends that 

the doctrine of attractive nuisance is applicable as to the 

Rig Ditch Company and that she meets here the elements of 

attractive nuisance as set forth in Restatement (Second) of 

Torts, 339. Big Ditch apparently accepts the applicability 

of the attractive nuisance doctrine to this case, but 

contends the elements are not met. 

A problem exists with respect to the automatic 

application of the attractive nuisance doctrine to ordinary 

irrigation ditches. While such irrigation ditches are 

artificially constructed, for the most part they have natural 

characteristics, and there may be little to distinguish them 

from the numerous streams, rivers and creeks that occur 

naturally in Montana, and flow in many instances through 

towns, vil-lages and cities. The attractive nuisance doctrine 

is not quite applicable to such artificial bodies of water; 
otherwise it could be contended that a landowner through 

whose property a natural stream flows is in reality 

maintaining an attractive nuisance. 

Tt is because courts have failed to recognize the 

distinction between bodies of water having natural 

characteristics and other artificial bodies such as swimming 

pools, sewage treatment plants and the like, that there 

appears to be a disparity in the holdings of courts with 

respect to drowning incidents in artificial bodies of water. 

For example, the rule announced in Fusselman, that there must 

be an implied invitation to a child to come upon the owner's 

land in order to hold the owner liable is not the law of this 

state tod-ay. There are, however, cases in this State and 

others from which a proper rule can he drawn. 

Troglia v. Butte Superior Mining Company (9th Cir. 

1921), 270 F. 75, was a case involving an eleven-year-old boy 

who drowned while swimming in a pond on the premises of the 

defendant mining company. The pond. had been constructed to 

furnish water to a mill, and was formed by damming a small 

stream. The pond. was 100 feet long and 75 feet wide and from 

1 to 12 feet deep. It was not enclosed. There were notices 

posted around. it which said "no trespassing," "private 

property," "10 feet deep," an.d "keep away." Nonetheless, 

boys swam there in summer as a matter of practice. This 

particular decedent was strong, in the seventh grade and able 

to read. After two hours of swimming in the pond, he 

apparently got cramps and drowned. The mining company had an 

attendant for a pump nearby. 

In Troglia, the Court of Appeals stated: 

The degree of care required of one who maintains on 

his land an artificial pool for a useful purpose is 

not greater than that required of one through whose 
land flows a natural strea-m, and he is bound to no 

special care or precaution for the protection of 

children who are in the habit of swimming in the 

same, unl-ess there is in the pool some peculiar 

danger, in the nature of a hidden peril or trap for 

the unwary, of which he has or ought to have 

knowledge. 

It is noteworthy that Troglia was decided in 1921 before 

the decision in Erie v. Tompkins (1938), 304 U.S. 64, 58 

S.Ct. 817, 82 L.Ed. 1188, but nevertheless, Troglia spoke a 

rule applicable to a Montana decedent. 

In a recent case before the Ninth Circuit, Harmon v. 

Billings Bench Water Users Association (9th Cir. 19851, 765 

F.2d 1464, the Court of Appeals reversed a summary judgment 

in favor of the ditch company granted by the federal district 

court in a drowning case in Montana. The Court of Appeals in 

Harmon accepted as settled that the attractive nuisance 

doctrine was applicable to irrigation ditches in Montana. In 

so stating, it relied on - Troglia, supra, and upon Coeur 

dlAlene Lumber Company v. Thompson (9th Cir. 1914), 215 F. 

8. The Court of Appeals decided that there was a genuine 

issue of material- fact as to whether the ditch might have 

presented a hidden danger that Harmon's son did not 

appreciate. The mother had testified that the concrete sides 

of the ditch were much steeper than the natural bank they 

ad.joined and that on the day in question, the water was above 

the concrete sides. The Court of Appeals likened these facts 

to those in Thompson (of which more later) and thus put the 

Harmon case within the hidden danger exception of the 

Restatement on attractive nuisance. The Court of Appeals 

also disagreed with the Federal District Court's holding that 

the erection of safety devices such as a childproof fence 
along the course of the ditch would be an oppressive burden 

upon the ditch company. 

Coeur d'Al-ene Lumber Company v. Thompson, supra, was a 

case arising from the Federal District Court in Idaho. There 

t.he d.efendant had operated a lumber mill at St. Maries and 

had built a cistern or well for storage of water. The water 

was used in connection with the operation of the lumber mill. 

The particular water body had been constructed by the company 

or its lessee by digging around a natural spring, and placing 

around the spring a wooden wall approximately 4 feet high and 

4 feet square through which the water bubbled up and escaped. 

The lessee in operating the mill had. d-umped sawdust and other 

debris in such manner as to obstruct the discharge of the 

spring after it filled the well. A pond of water accumulated 

about 1-2 feet over the level of the planked well. Moreover, 

sawd-ust floated on top of the resulting pond. The shallow 

pond was 12 to 15 feet wide and 25 to 30 feet long and the 

wooden construction underneath the water was hidden from 

view. Two boys waded into the pond and one of them suddenly 

dropped into the constructed well.. The other boy tried to 

save him and both of them drowned. The Court of Appeals 

found that the circumstances of the well constituted a hidden 

trap and a-ffirmed a judgment for the wrongful death of the 

decedent. 

From Harmon, Troglia and Thompson, supra, we can deduce 

a rule proper for application to drowning incidents involving 

immature children rather than the attractive nuisance 

doctrine. Accordingly, we hold that the degree of care of 

one who maintains on his land an artificial stream or body of 

water for a useful purpose, where the stream or body of water 

has natural characteristics, is no greater than the degree of 
care required of one through whose land flows a natural 

stream or contains a natural body of water. The owner or 

user of an artificial stream or body of water having natural 

characteristics is bound to no special duty of care or 

precaution for the protection of children who may enter 

therein, unless there is in or about the artificial stream or 

body of water some peculiar danger, in the nature of a hidden 

peril or trap for the unwary, of which the owner or user has 

or ought to have notice. The doctrine of attractive nuisance 

as such does not apply to such artificial streams or bodies 

of water anymore than it applies to natural streams or bodies 

of water. 

Such a holding has these advantages: (1) It avoids the 

disparity in the cases, some of which hold that attractive 

nuisance is applicable to irrigation ditches, and most of 

which hold it is not; (2) the holding is based more on the 

concept of negligence than attractive nuisance, and the 

ordinary concepts of negligence, that is, duty, breach and 

proximately-caused injuries are more useful in determining 

liability in such instances; and (3) the holding avoids legal 

fictions, such as attractive nuisance, which developed 

originally to excuse the unwitting trespass by children. 

In Harmon, in footnote 3, the Circuit Court of Appeals 

felt that this Court had vacillated on the necessity of 

status of the injured party in determining the duty owed by a 

property owner to an injured party. 765 F.2d at 1467. In 

Corrigan v. Janney (Mont. 1981), 626 P.2d 838, 841, 38 

St.Rep. 545, 549, in construing section 27-1-701, MCA 

(formerly section 58-607, R.C.M. 1947), we held that the 

statute prevented us from distinguishing between social 

guests and invitees in determining the liability of the 
landowner for injuries received. We regard the same statute 

as decl-aring the applicable law as to the duty of landowners 

to persons though they may be trespassers. The test is 

always not the status of the injured party but the exercise 

of ordinary care in the circumstances by the landowner. The 

statute provides: 

Everyone is responsible not only for the result of 

his wilful acts but also for an injury occasioned 

to another by his want of ordinary care or skill in 

the management of his property or person except so 

far as the latter has wilfully or by want of 

ordinary care brought the injury upon himself. 

Section 27-1-701, MCA. 

Although in a later case, Cereck v. Albertson's, Inc. 

(1981), 1-95 Mont. 409, 412, 637 P.2d 509, 511, we stated that 

the duty imposed on a property owner depends on the status of 

the injured party, that statement is not correct in the light 

of section 27-1-701, MCA, above quoted. 

It appears plain therefore, that the motion for summary 

judgment was submitted for decision to the District Court as 

to Big Ditch Company upon an incorrect theory of liability. 

We therefore remand. this cause to the District Court with 

respect to Big Ditch for a reconsideration of the motion for 

summary judgment based on the rule of law expressed herein. 

We express no opinion as to what that decision should be at 

this juncture. 

--..A 

B . Neali.ence 

In addition to her theory on attractive nuisance, 

Limberhand alleged in her amended complai-nt that the water 

flow in the ditch was great and that the maintenance of the 

ditch created a deceptive condition because of grass and 

weeds growing along the edge of the ditch and under the 

surface of the water. She also alleged that the 
construction, design and maintenance of the ditch omitted all 

safety measures such as warnings, fences or other protective 

devices, and that the hazards and dangers of the ditch were 

hidden and not discoverable by a child of tender years. 

In the discussion on attractive nuisance, we have set 

forth a rule to determine liability, if any, of the owner of 

lancis which contain artificial streams or bodies of water 

with natural characteristics. Tf on remand the District 

Court determines that a genuine issue of material fact exists 

as to whether the irrigation ditch here in question presented 

a peculiar danger in the nature of hidden peril or trap for 

the unwary, a fact issue would arise for a jury or other 

trier of fact. It would follow that the court would then 

instruct the jury that the duty of providing warnings, fences 

or other protective devices for the unwary would be measured 

by the landowner's duty to exercise "ordinary care or skil-1 

in the management of his property" pursuant to section 

27-1-701, KCA. 

All questions of negligence in this case on the part of 

Big Ditch Company are inextricably bound up in the primary 

issue whether the ditch presented a peculiar danger in the 

nature of a hidden peril or trap for the unwary. 

11. The City of Billings 

Ordinances 

Limberhand complains that Big Ditch Company is in 

violation of City of Billings Ordinance No. 4343, section 

1-0.80.030, which states: 

Every person owning or operating any irrigation 

ditch or system or portion thereof within the City 

shall care for, mainta.in and control said 

irrigation ditch, system, water being transported 

and concomitant structures. Said care, control and 

interactions and reactions to structures and 

impediments not controlled or maintained by persons 
owning or operating the irrigation systems. The 

duty imposed hereby shal-1 extend to control and 

removal of all obstructions, litter, debris, plant 

materials, loose earth, rocks, stones, concrete and 

wood material without limitation in, on, or around 

said irrigation ditches. 

It is the contention of Limberhand that the ordinance 

was violated by the Ditch Company, at least as to the plant 

materials, and therefore summary judgment was improper. 

Militating against Limberhand is the paucity of facts 

marshalled by Limberhand before the District Court to show 

that plant materials or other debris accumulated in such 

manner as to violate this ordinance, and to be a legal cause 

of the drowning. 

We examine the applicable statutes and ordinances, 

however, because the court may have to decide issues 

thereunder on remand. 

Section 7-31-4103, has been on the hooks in 

substantially its present form since 1921. It provides: 

The city or town council has power to regulate the 

use and construction of irrigation ditches, drains, 

and flumes within or running through any city or 

town. 

With respect to open ditches, the legislature enacted 

Part 42, Title 7, M.CA, in 1961 for the avowed purpose of 

preventing the drowning of children within the limits of an 

incorporated city or town (sections 7-31-4201 through 

7-31-4207, incl., MCA). 

Under 7-31-4203, MCA, it is declared that water that 

flows in an open ditch in an incorporated city is a public 

nuisance if the city or town, acting through its governing 

body declares it to be a nuisance. However, section 

7-31-4207, MCA, provides that the part does not apply to 

ditches carrying water used for commercial irrigation water 

purposes. Ostensibly then, under section 7-31-4207, MCA, any 
ordinances adopted by the City of Billings appl-ying to the 

Big Ditch Company lateral under the authority of section 

7-31-4201, et seq., MCA, for the purpose of declaring a ditch 

a public nuisance, and providing remedial measures is outside 

the power of the City of Billings. 

Ordinance No. 4343 was adopted by the City of Billings 

on April 27, 1981. Under its provisions, we have already set 

out section 10.80.030 relating to the care and maintenance of 

irrigation ditches. The ordinance also provides that failure 

to care for and maintain the ditches as provided for in 

section 10.80.030 shall constitute a public nuisance. There 

are provisions for punishment for vj.olations of the 

ordinance. The ordinance further provides that the City 

cannot order a ditch to be discontinued or prohibit the use 

of the ditch if it is used by 10 percent or more of the 

abutting landowners on the ditch. In this case, 30.6 percent 

of the landowners used the ditch for irrigation purposes. 

The further contention of Limberhand is that the City 

had a duty to go forward in this case and determine that the 

ditch in question is a nuisance and take remedial measures. 

Limberhand predicates negligence and liability on the part of 

the City for failure to take such action. 

Limberhand fails in this contention on three points: 1) 

The state statutes empowering cities to adopt ordinances 

designed to prevent the drowning of children do not apply to 

commercial irrigation ditches; 2) The city ordinance itself 

does not apply since more than 10 percent of the abutting 

landowners use the ditch for irrigation purposes; and 3) Any 

further action on the part of the City of Billings would 

require legislative action by the City Council. The failure 

of the City to take legislative action may not be the basis 
of a suit against it for liability, since the City is immune 

under section 2-9-111, MCA, providing immunity from suit for 

legislative action and omissions. The summary jud.qment in 

favor of the City of Billings is therefore affirmed. 

(We do not reach the question, if the question exists, 

whether Billings Ordinance No. 4343 supersedes state law 

because of the nature of the charter of the City of 

Billings.) 

In like manner, there is nc basis to predicate liability 

against Big Ditch based upon the city ordinance. 

111. The Nicholsons 

The Nicholsons, d/b/a Nicholson, Inc. and d/b/a Apple 

Creek Ltd. and Property Management Inc. , hereafter 

Nichol-sons, owned and managed the Apple Creek Apartments that 

border the irrigation ditch where Jaylon Limberhand drowned 

on June 27, 1981. On the day Jaylon drowned, he and his 

mother, Connie Limberhand, were visiting Connie's sister who 

was a tenant of the Apple Creek Apartments. The District 

Court sustained Nicholsons' motion for summary judgment 

holding that Nicholsons owed no legal duty to the appellant 

or appellant's decedent. 

Appellant contends that the question of whether 

Nicholsons breached the common law duty to keep the premises 

reasonably safe and to warn of any hidden or lurking danger 

is one a jury should decide. We agree. It is well-settled 

law in Montana that the social guest of a tenant in the 

common areas of an apartment complex is afforded a degree of 

protection from harm in relation to the duty of a landlord. 

Piedalue v. Clinton Elementary School District No. 2 (Mont. 

1984), 692 P.2d 20, 41 St.Rep. 2344; Rennick v. Hoover 

(1980), 186 Mont. 167, 606 P.2d 1079; Olson v. Kayser (1973), 
161 Mont. 241, 505 P.2d 394. The qrounds surrounding an 

apartment complex a.re part of the common area. See Olson, 

supra. We have said earlier in this opinion that the status 

of Limberhand as a social guest is not controlling. 

Nicholsons' duty is governed by the provisions of section 

27-1-701, MCA, supra. 

The issue of Nicholsons' potential liability based on 

breach of a duty owed Limberhand's decedent poses a two-part 

query. One, could an irrigation ditch constitute a 

sufficient danger to tenants or their guests of an apartment 

complex to require that the 1and.l.ord take precautionary 

measures in order to satisfy his du.ty to keep the premises 

reasonably safe? Two, does the fact that the irrigation 

ditch is owned by another and is located on land adjoining 

the landlord's common area absolve the landlord of liability 

as a matter of law? 

The apartment owners owed a duty in this case to use 

ordinary care to have their premises reasonably safe or to 

warn of ariy hidden or lurking danger. What constitutes 

reasonably safe premises is generally considered to be a 

question of fact. Whether a premises is safe depends to a 

large extent on what use the property is put to, its setting, 

location and other physical characteristics, and the type of 

person who would foreseeably visit the premises, as well as 

the specific type of hazard. or unsafe condition alleged. 

These and other factors are embodied in the legal concept of 

"reasons-ble under the circumstances." For example, the 

existence of an open irrigation ditch in a farmer's field 

poses little danger compared to the same irrigation ditch 

located near an apartment complex populated by families with 

sniall children. 
The duty of a landlord under section 27-1-701, MCA to 

use ordinary care in managing his property imposes on hj.m a 

duty to make the premises reasonably safe under the test of 

ordinary care for all persons who forseeably might properly 

come on the premises, old and young, large and small. 

Tenants and their social guests are necessarily users of 

rental apartment complexes. 

We conclude that a question of material fact exists as 

to whether the irrigation ditch could present sufficient 

danger to tenants and their social guests of this apartment 

complex so that by not taking any remedial or warning 

measures the landlords may have breached their duty to keep 

the premises reasonably safe. Whether the landlord breached 

this duty is a jury question. 

We do not mean that landlords are absolute insurers of 

the safety of their property and environs. What we do mean 

is that the duty of landlords to others in the management of 

their property is to use that degree of ordinary care which 

reasonable persons would use under the same or similar 

circumstances. 

Having affirmatively answered the first question of the 

two-part query, we address the second question. How does the 

fact the ditch is not located on Nicholsons' land affect 

Nicholsons' duty to keep his premises reasonably safe? 

Nicholsons flatly state in their brief that there exists 

no duty on the part of a landowner to guard against 

conditions on adjoining property over which they have no 

dominion or control. Nicholsons cite cases that stand for 

the proposition that an adjacent property owner is not liable 

for injuries sustained by a youth who gained access to a 

hazardous condition by crossing his land. These cases are 
clearly distinguishable from the instant case. Two cases, 

however, are on point. Walters v. Greenglade Villas 

Homeowners Association (Fla. App. 1981), 399 So.2d 538, 539, 

holds there is no duty on a condominium owners' association 

to erect a fence to shield small children from the hazards of 

a canal. In Jones v. United States (4th Cir. 1957), 241 F.2d 

26, the federal court construed Maryland law as it existed in 

1.957 (Maryland did not recognize the doctrine of attractive 

nuisance) and held that the primary duty to inform, advise 

and protect a child of tender years must rest upon the 

parents or others in loco parentis. 

Recently, in Piedalue v. Clinton Elementary School 

District No. 2 (Mont. 1984), 692 P.2d 20, 41 St.Rep. 2344, we 

rejected a rigic? property line determination of liability. 

In Piedalue, the plaintiff was a social guest visiting a 

tenant of property owner, A1 Baide. Baide maintained a 

primary road for ingress and egress from his trailer park. 

Another road which appeared also to provide ingress and 

egress from the premises abruptly ended in an irrigation 

ditch 60 feet beyond Baide's property line. We held that 

Baide's duty to have a reasonably safe premises could extend 

beyond the premises to the dangerous condition located on 

land adjacent to Eaidefs property. 

The area owned by Nicholsons adjoining the irrigation 

ditch was in the dominion and control of Nicholsons. If the 

instrumental-ity causing harm is located adjacent to the 

landowner's property, and the instrumentality poses a clear 

and foreseeable danger to persons properly using the 

landowner's premises, we see no reason to shield the 

landowner from liabil-ity as a matter of law. A duty to take 

some reasonable precautions may exist. This duty may in some 
instances be discharged by a warning; under other 

circumstances remedial action may be required. A jury should 

be given the opportunity to determine if Nicholsons used 

reasonable care unc?er the circumstances in discharqing any 

duty they may have owed to Jaylon Limberhand to maintain a 

safe premises. The fact that the irrigation ditch was not 

located on Nicholsons' land does not as a matter of law bar 

appellant's claim. 

Nicholsons further contend that 5 85-6-107, MCA, 

statutorily imposes exclusive liability on incorporated water 

users associations (Big Ditch Company) for any injury caused 

by failure to maintain safe working and operating conditions 

of an jrrigation system. Nicholsons assert this statute bars 

appellant's case against them. Nicholsons read the statute 

too broadly. Section 85-6-107, MCA, appears in the code 

defining the rights and liabilities of ditch companies with 

respect to the State of Montana. The State disclaims 

liabi-lity for in juries allegedly caused by its regul-a tion of 

such companies. We do not find the statute applicable. 

Nicholsons argue that constructing a fence or other 

barricade would interfere with Big Ditch Company's rights and 

place Nicholsons in the untenable position of safeguarding 

its property or being subjected to suit by Big Ditch Company. 

This argument is based on speculation and lacks merit. 

Nicholsons offered no proof that erecting a fence would 

interfere with Rig Ditch Company's rights. A fence 

constructed on Nicholsons' property may not interfere with 

Big Ditch Company's right-of-way anymore than the 

construction of the apartment complex itself. 

Nicholsons further argue that they should not be 

required to construct a fence because other landowners have 
not. Nicholsons' prudence is not measured by the imprudence, 

if any, of others. Nicholsons' duty is measured by the 

standard of reasonable care. 

We reverse the order of the District Court qranting 

summary judgment to Nicholsons and hold that issues of 

material fact exist concerning whether Nicholsons exercised 

reasonable care i.n maintaining a safe premises. We remand 

this case for further proceedings in accordance with this 

opinion. 

Reversed in part; affirmed in part. Costs to appellant. 

We Concur: 

ddt~Lp Chief Justice