No. 92-388 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

D. MICHAEL CURRAN, 

Plaintiff and Appellant, 

DEPARTMENT OF HIGHWAYS 

OF THE STATE OF MONTANA, 

Defendant, Respondent 

and Cross-Appellant. 

APPEAL FROM: District Court of the First ~udicial District, 

In and for the County of Lewis and Clark, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William G. Sternhagen; Sternhagen Law ~irm, Helena, 

Montana 

For Respondent: 

Stephen F. Garrison, Nick A. Rotering & James R. 

Beck, Legal Services, Department of Transportation, 

Helena, Montana 
Justice John Conway Harrison delivered the Opinion of the Court. 

Appellant D. Michael Curran (Curran) appeals an order of the 

First ~udicial ~istrict Court, Lewis and Clark County, denying his 

request for an injunction and dismissing his complaint against the 

Montana Department of Highways (Department). The Department crossappeals, We affirm. 

Montana Highway 200 crosses Flat Creek on Curran's property in 

Lewis and Clark County northeast of Bowmans Corner. In 1985 the 

Department reconstructed the highway across Currants property, 

removing a large wooden bridge over Flat Creek and replacing it 

with twin culverts. Construction of the new stream crossing 

required a United States Amy Corps of Engineers permit, which in 

turn required the concurrence of the United States Environmental 

Protection Agency, the United States Fish and Wildlife Service, and 

the Montana Department of Fish, Wildlife and Parks. To obtain the 

approval of these agencies, the Department revised its original 

plans and built the twin-culvert structure to conform to their 

standards. 

In February 1986, during a flood caused by melting snow, the 

new culverts were blocked by ice and debris. The creek overflowed, 

covering approximately seventeen acres of Curran's grazing land. 

The overflow caused erosion and left debris and gravel on the land 

after the flood subsided. Curran had to move cattle and feed from 

the affected area and thus was unable to use the land for its 

ordinary purposes. 

In his complaint, filed in April 1987, Curran alleged that the 

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Department had a duty to use ordinary care and skill in replacing 

the existing bridge and that it breached its duty by ignoring 

stream flow and engineering standards when it installed twin 

culverts that were too small to handle the flood waters. Causing 

the resulting flood, Curran charged, was a trespass by the 

Department. Further, Curran alleged, the new installation created 

a situation that was likely to recur unpredictably in the future, 

creating a continuing nuisance and future damages that could not be 

redressed by a legal remedy. 

Currants original complaint prayed for past and future damages 

and for a mandatory injunction requiring the Department to replace 

the stream crossing with a crossing of adequate size and design 

that would prevent future flooding of his property, prevent future 

trespasses, and abate the nuisance. 

In November 1990, however, Curran amended his complaint, 

deleting the request for damages and leaving only the request for 

a mandatory injunction. The Department moved in July 1991 to deny 

the injunction, and in June 1992 the District Court granted the 

Department's motion and dismissed Curran's complaint with 

prejudice. Curran appealed. 

We have restated the issues on appeal as follows: 

1. Whether a mandatory injunction is an appropriate remedy in 

this case. 

2. Whether the twin-culvert stream crossing created a 

nuisance under S 27-30-101, MCA. 

As our holding on the first issue is dispositive, we do not address 

the second issue. 
A district court may issue an injunction when it appears that 

the commission or continuance of an act will produce "irreparable 

injuryM to the party seeking such relief. The granting of an 

injunction is discretionary, and we will sustain it unless an abuse 

of discretion is shown. Madison Fork Ranch v. L & B Lodge Pole 

Timber Products (l98O), 189 Mont. 292, 302, 615 P.2d 900, 906. The 

same standard of review applies to a District Court's denial of an 

injunction. Smith v. Ravalli County Board of Health (1984), 209 

Mont. 292, 679 P.2d 1249. Here, we conclude that the District 

Court did not abuse its discretion in denying Curran's request for 

an injunction. 

The Department argues that an injunction is not an appropriate 

remedy when "a plain, adequate, and speedy remedy at law" is 

available, and that such a remedy is available in the form of 

inverse condemnation. The Department relies chiefly on our 

decision in Riddock v. City of Helena (1984), 212 Mont. 390, 687 

P.2d 1386. In Riddock we held that: 

The landowner's only remedy for the City's construction 

of a pipeline on his land without obtaining an easement 

is an inverse condemnation action for just compensation 

for the value of the easement on the date of the taking. 

687 P.2d at 1388. Riddock had asked for compensation for an 

alleged taking of land without compensation, or in the alternative 

for an injunction requiring the city to remove its pipeline. The 

court granted summary judgment for the city on the grounds that 

Riddock, as the successor in interest to the person who had owned 

the land when the city built the pipeline, had no right to 

compensation. The former landowner had a right to compensation 

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through inverse condemnation, though he did not pursue it; 

therefore, an injunction was not an available remedy for Ç id dock. 

Our rule in Riddock is based on the theory that to allow a 

landowner injunctive relief would permit that landowner to defeat 

a public entity's power of eminent domain. 687 P.2d at 1388. We 

believe that as a matter of public policy the better alternative is 

to ensure compensation for a damaged landowner, like Curran, by 

requiring the state to purchase any property it takes for a public 

purpose. See Hurley v. Rincaid (19311, 285 U.S. 95, 104, 52 S-Ct. 

267, 269, 76 L.Ed. 637, 643 (where a federally-sponsored flood 

control project threatened to flood the plaintiff's land, failure 

to compensate him for taking his property ''affords no basis for an 

injunction if such compensation may be procured in an action at 

law*') . 

Curran points out that in Riddock the plaintiff did not allege 

nuisance or trespass and argues that the case should be 

distinguished. Further, Curran argues, he is not asking for 

damages in any form, but for an abatement of the nuisance caused by 

the Department's stream crossing. He cites a 1909 opinion in which 

we left open the possibility that an injunction ordering a power 

company to remove its dam might be warranted. Wilhite v, Billings 

& Eastern Montana Power Co. (1909), 39 Mont. 1, 101 P, 168. 

In Wilhite the defendant's dam flooded the plaintiff's land, 

and the plaintiff requested an order compelling the defendant to 

lower, remove, or alter its dam in such a way as to avoid further 

damage to his property. The trial court ordered the power company 
to rebuild and repair its dam, but we remanded the case for a 

modified order that merely required the power company to abate the 

nuisance, commenting that the trial court's injunction was 

''entirely too broad and drastic," and that "there is no evidence 

that it is necessary to rebuild, repair, or remove the darn." We 

concluded: 

This Court will, in proper cases, order the entry of 

interlocutory restraining orders, either mandatory or 

prohibitory, as the case may require; but we find in this 

record no warrant for making such an order in this case. 

Here, too, we find no warrant far an order compelling the 

Department to reconstruct its stream crossing. If Curran can show, 

however, that the Department's stream crossing caused Flat Creek to 

inundate his land, then he may be entitled to compensation for a 

physical taking of his property. We held in Knight v. City of 

Missoula (1992), 252 Mont. 232, 243, 827 P.2d 1270, 1276, that "a 

property owner may recover in an inverse condemnation action where 

actual physical damage is proximately caused to his property by a 

public improvement. " 

If Currants loss can be compensated, of course, it is not an 

irreparable injury. He voluntarily waived damages by amending his 

complaint so as to limit his remedy to a mandatory injunction, but 

his waiver does not create an irreparable injury. Without a 

showing of an irreparable injury, Curran is not entitled to a 

mandatory injunction. 

As Curran has not shown that his property was irreparably 

damaged, or that inverse condemnation would not be an adequate 

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remedy, the District Court concluded correctly that his only remedy 

is an action for condemnation or damages. 

The Department filed a cross-appeal, raising an issue not 

addressed by the District Court: whether the District Court has 

jurisdiction to order the Department to replace the stream 

crossing. 

The Department argues that even if the District Court had 

ordered the Department to rebuild the stream crossing, the 

Department could not have done so without a permit from the United 

States Army Corps of Engineers, pursuant to 33 U.S.C. 5 404 (the 

Clean Water Act). Further, the Department argues, because the 

District Court has no authority to order the Corps of Engineers to 

issue such a permit, the Department could find itself enjoined to 

rebuild a bridge that is prohibited by the federal government. 

Because we affirm the District Court's decision to deny the 

injunction, we need not address this issue. Federal penit 

requirements would be a consideration only if the District Court 

had decided to grant the injunction. 

Af f irmed . 

We concur: 

Justice Karla M. Gray dissenting. 

I respectfully dissent. The majority totally fails to address 

the alleged nuisance which is the pivotal issue in this case, and 

the availability of an injunction in a nuisance setting; in so 

doing, it ignores altogether the Decision and Order of the District 

Court which is before us for review. As a result, it is my view 

that the majority opinion is not only incorrect, it is 

substantially irrelevant to the case before us. Based on the 

analysis set forth below, I would reverse the District Court and 

remand for further proceedings. 

As a threshold matter, I note that the ~istrict Court's 

decision was issued prior to any factual determinations being made 

in the case, while that decision granted the Department's Motion 

to Deny Injunction, rather than ruling on a Rule 12 (b) (61, 

M.R. Civ .P. , motion to dismiss, it is clear that the court accepted 

Currants allegations as true for purposes of its decision. I will 

do the same. 

In general, the District Court determined that Curranas 

nuisance allegations and request for injunction against a 

continuing nuisance glwould be well taken but fortt the fact that 

both arose out of the Departmentls construction of a stream 

crossing pursuant to statutory authority. Specifically, the court 

first determined that, taking Currants allegations as true, it is 

fflikelylf the flood waters complained of could be considered a 
nuisance under 5 27-30-101(1), MCA. The court went on to note that 

subsection (2) of that statute provides that nothing done or 

maintained under the express authority of a statute can be deemed 

a nuisance. I agree with the District Court's analysis to this 

point. 

The court then correctly determined that 5 60-2-201, MCA, 

expressly authorized the Department to construct the stream 

crossing. On that basis, it concluded that no injunction was 

available because the flood waters could not constitute a nuisance, 

as a matter of law, pursuant to 5 27-30-101(2), MCA. Having thus 

removed the nuisance question from the case, the District Court 

based its determination that an injunction was not available on 

Riddock, a case not involving a nuisance. 

It is my view that the District Court erred in these latter 

stages of its analysis. It is true that 5 60-2-201, MCA, expressly 

authorized the Department to construct the stream crossing. 

Nothing in that statute, however, authorizes the Department to 

create and maintain flood waters on the private property of a 

Montana citizen, the circumstance asserted by Curran to constitute 

a nuisance. The District Court's statutory analysis is contrary to 

established principles and recent case law. 

This Court has repeatedly held that a governmental entity is 

entitled to no more deference than a private citizen in matters of 

creating a nuisance. Knight v. City of Missoula (1992), 252 Mont. 

232, 247, 827 P.2d 1270, 1279; Walton v. City of Bozeman (l978), 
179 Mont. 351, 356, 588 P.2d 518, 522; Lennon v. City of Butte 

(1923), 67 Mont. 101, 106, 214 P. 1101, 1102-3. In each of those 

cases, we expressly rejected the governmental entity's argument 

that 5 27-30-101 (2) , MCA, prevented a claimant from asserting a 

nuisance claim against it. In Kniaht, we stated that: 

[WJhen a governmental entity in its method of 

administration of . . . [its governmental powers] creates 

a nuisance it is not exercising the governmental function 

but is doing something forbidden by law. 

Here, no statute expressly authorized the actions of the 

Department alleged to constitute a nuisance--namely, the creation 

and maintenance of flood waters on private property. Therefore, 

the District Court erroneously concluded that 9 27-30-101(2), MCA, 

prevented a finding of nuisance as a matter of law. 

Once the nuisance claim is correctly reinserted in this case, 

and assuming with the District Court that Curran can establish a 

continuing nuisance, the availability of an injunction can properly 

be addressed. This Court has consistently held that an injunction 

is a proper remedy to abate a continuing nuisance. Boyer v. 

Karagacin (l978), 178 Mont. 26, 32, 582 P.2d 1173, 1177-8; Floyd v. 

City of Butte (1966), 147 Mont. 305, 313, 412 P.2d 823, 827; 

Wilhite v. Billings & Eastern Montana Power Co, (19091, 39 Mont. 1, 

11, 101 P. 168, 171. In cases of continuing nuisance, damages are 

inadequate because the injured party is forced to bring a 

multiplicity of suits in successive actions for 

injury. See Floyd, 412 P.2d at 827; Hart v. Wagner 

the recurring 

(Md. 1944), 40 
A.2d 47, 50. 

I: will not address at any length the majority's inverse 

condemnation theory. I note, however, that the availability of 

such a remedy is entirely speculative on the limited record before 

us. In addition, as noted above, Riddock was itself an inverse 

condemnation case, not a nuisance case. We determined that an 

injunction was not an alternative or cumulative remedy to the 

inverse condemnation claim. 

In this regard, it is interesting to note that neither party 

appears to assert--at least consistently--the propriety or 

availability of an inverse condemnation claim. Curran argues that 

no "public purposeM is served by the flooding of his land. In its 

answer to Curran's complaint, the Department asserted as an 

affirmative defense that any flooding was attributable solely to a 

combination of warm weather and rain; in support of its Motion to 

Deny Injunction, it averred via affidavit that the creek had 

flooded Currants land prior to the installation of the culverts. 

The only fair characterization of this position is that the 

Department contends that no "takingw occurred. Thus, the record 

positions of both parties run counter to the existence of the 

elements necessary for an inverse condemnation action and, 

therefore, to the availability of such an action to Curran as a 

remedy. 

I also disagree with the majority1 s characterization of 

Wilhite. We concluded in Wilhite that an injunction was available 
under the circumstances of that case, circumstances that are, as 

the District Court stated, "so similar to the case at bar." We 

stated that the record showed a simple and ordinary case of 

maintaining a nuisance to the plaintiff's damage. Wilhite, 101 P. 

at 171. The majority's statement that we "left openqf the 

possibility of an injunction in Wilhite is simply incorrect; we 

expressly approved of an injunction to abate a nuisance against an 

entity with the power of eminent domain, remanding only for the 

district court to narrow the scope of the injunction it had issued. 

Wilhite, 101 P. at 171. Finally, the majority erroneously 

concludes as a matter of law that no injunction is available in 

this case and then makes unstated and entirely premature factual 

determinations in order to "find no warrant" for the issuance of an 

injunction of a certain scope. I cannot agree. 

As a final matter, I agree wholeheartedly with the majority's 

statement of public policy that we should ensure compensation for 

a damaged landowner by requiring the State to purchase any land it 

takes for a public purpose. The statement has little relevance to 

the case before us, however. Curran does not claim that the 

Department has taken his property; he maintains that the Department 

is maintaining a nuisance upon it. 

The threshold issue before us is whether, taking Currants 

allegations as true, he may be able to establish a nuisance or 

whether, as the District Court concluded and the majority does not 

discuss, he cannot establish a nuisance as a matter of law. Upon 
that determination revolves the ultimate issue of whether an 

injunction is available. 

I would reverse the District Court's determination that the 

flood waters cannot constitute a nuisance as a matter of law and 

remand for further proceedings. 

Justice Terry N. Trieweiler joins in the foregoing dissent. 

c ustice