No. 92-388 INTHE 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, MontanaJustice 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 injunctionand dismissing his complaint against the Montana Department ofHighways (Department). TheDepartment crossappeals, We affirm. Montana Highway 200 crossesFlat Creek on Curran'sproperty in Lewis and Clark County northeast of Bowmans Corner. In 1985 the Department reconstructed the highway across Currantsproperty, removing a large wooden bridge over Flat Creek and replacing it 

### with twin culverts. Construction of the new stream crossing required a United StatesAmy Corps of Engineers permit,which in turn required the concurrence of the United States Environmental Protection Agency, theUnited StatesFish andWildlife 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 culvertswere 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. Inhis complaint,filed inApril 1987,Curran alleged that the 2

### 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, creatinga continuing nuisanceand futuredamages that could not be redressedby a legal remedy. Currants original complaintprayed forpast and futuredamages and for amandatory injunction requiring the Department to replace the stream crossing with a crossing of adequate size and design thatwould 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

amandatory injunction. The Departmentmoved inJuly 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 amandatory injunctionis 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 isdispositive, we do not address the second issue.A district courtmay issue an injunctionwhen 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 isdiscretionary,andwewill 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 thatan injunction isnot 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 landwithout 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 4through inverse condemnation, though 

### he did not pursue it; therefore, an injunctionwas 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'spower of eminent domain. 687 P.2d at 1388. We believe that as amatter of public policy thebetter alternative is to ensure compensation for 

### a damaged landowner, like Curran, by requiring the state topurchase any property it takes for a public purpose. SeeHurley 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*') 

# . Curranpoints out that inRiddock theplaintiff did not allege nuisance or trespass and argues that the case should be distinguished. Further, Curran argues, he 

### is not asking for damages 

### inany form,but for

### an abatement of the nuisance causedby 

### the Department'sstream crossing. He citesa 1909 opinion inwhich

we left open 

### the possibility that an injunction ordering 

### a power company to remove its dammight be warranted. Wilhite 

### v, Billings & Eastern Montana 

### Power Co. (1909), 39 Mont. 1, 101 P, 168. InWilhite 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 companyto rebuild and repair its dam, but 

### we remanded the case for a modified order thatmerely required the power company to abate the nuisance, commenting that the trial court's injunction was ''entirelytoo 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 casemay require;butwe find in this record no warrant formaking such an order in this case.

Here, too, we find no warrant 

### far an order compelling the Departmentto reconstruct its streamcrossing. If Curran can show, however, that theDepartment'sstreamcrossing caused FlatCreek 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 ownermay recover 

### in an 

### inverse condemnation action

### where actual physical damage 

### is proximately caused to his property by a 

### public improvement.

## " If Currantsloss can be compensated, of course, it is not 

### an irreparable injury. He voluntarily waived damages

### by amendinghis complaint so as to limithis remedy to amandatory 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 6remedy,the District Court concluded correctlythat 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. Affirmed

# .

We concur:

### Justice Karla M. Gray 

### dissenting.

I

### respectfullydissent. Themajority totally failstoaddress 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 altogetherthe DecisionandOrder 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 

### furtherproceedings. As a 

### threshold matter, I 

### note that the ~istrictCourt's decision was issued

### prior to any factualdeterminations beingmade 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 

### Currantsallegations as true forpurposes of itsdecision. 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 Departmentlsconstruction of a stream crossing pursuant to statutoryauthority. Specifically, the court first determined that, taking Currantsallegations as 

### true, it is fflikelylf the flood 

### waters complained of could be 

### considered a

### nuisanceunder 

### 5 27-30-101(1), MCA. The courtwent on tonote 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 floodwaters couldnot constituteanuisance,

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 assertedby Curran to constitute

anuisance. TheDistrictCourt's statutory analysis is contraryto established principles and recent case law. This Court has repeatedlyheld that a governmental entity is entitled to no more deference than a private citizen inmatters of creating a nuisance. Knightv. 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), 67Mont. 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 administrationof 

# .

# .. [its governmental powers] creates anuisance 

### it is not exercisingthegovernmental function but 

### is doing 

### something forbiddenby 

### 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 continuingnuisance, theavailabilityof an injunctioncanproperly be addressed. This Court has consistentlyheld that an injunction is 

### a proper remedy 

### to abate 

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

### v. City of Butte (1966), 147 Mont. 305, 313, 412 P.2d 823, 827; Wilhitev. Billings & Eastern Montana 

### Power Co, (19091,39Mont. 1, 11, 101 P. 168, 171. In cases of continuingnuisance, 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), 40A.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 recordbefore

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 availabilityof 

### an inverse condemnationclaim. Curran argues that

no "public

### purposeM is servedby the flooding of his land. In 

### its



### answer to Curran's 

### complaint, the Department 

### asserted as 

### an affirmativedefense that any floodingwas attributable solelyto a 

### combination of warmweather 

### and rain; 

### in support of its

### Motion to Deny Injunction, it 

### averred via affidavit that the creek had 

### flooded Currantsland prior 

### to the installation of the culverts. The only fair characterization 

### of this position is that the Department contends that no "takingwoccurred. 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 injunctionwas 

### 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 theplaintiff's damage. Wilhite, 101 

### P. at 171. 

### The majority's statement that we "left openqfthe possibility of an injunction in Wilhite is simply incorrect; we expressly approved of an injunctionto abate a nuisance against an entity with the power of eminent domain, remanding only for the district courttonarrow the scopeof the injunction ithad 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 "findnowarrant" for the issuanceof an injunction of a certain scope. I

### cannot agree. As a finalmatter, I

### agree wholeheartedly with themajority's statement of public policy that we should ensure compensation for

a damaged landownerby requiring the State to purchase any land it takes for a public purpose. The statementhas little relevanceto the case before us, however. Curran does not claim that the Departmenthas takenhisproperty;hemaintains that theDepartment 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 concludedand themajority does not discuss, he cannot establish a nuisance as a matter of law. Uponthat 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.

ustice 

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