Yo. 83-143 

IN THE SUPREME COURT OF THE STATE OF MONTA??A 

1983 

FORMICOVE, INC., 

Plaintiff and Appellant, 

-vsBURLINGTON NORTHERN, INC . , 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Dzivi, Conklin & Nybo; Susan J. Rebeck, Great Falls, 

Montana 

For Respondent: 

Charles C. Dearden, Billings, Montana 

Filed: 

Submitted: September 21, 1933 

Decided: December 20, 1983 

Clerk 
Honorable Gordon R. Bennett, District Judge, delivered the 

Opinion of the Court. 

Plaintiff, Formicove, Inc. , appeals from a summary 

judgment granted Burlington Northern, Inc. (RN) , by the 

District Court of the Eighth Judicial District, Cascade 

County. 

BN has a railroad enbankment situated between 

Formicove's property and the Missouri River. Two culverts 

run under the embankment. In May of 1980 and June of 1982 

Formicove's basement was flooded. by surface waters. 

Formicove claims BN's failure to maintain its culverts caused 

the surface waters to flood Formicove's basement. Relying 

upon LeMunyon v. Gallatin Valley Ry. Co. (1921), 60 Mont. 

517, 199 P. 915, the District Court held that section 

69-14-240, MCA, does not impose a statutory duty on BN with 

regard to obstruction of surface waters and granted RN summary judgment. 

The dispositive issue here is whether the LeMunyon case 

correctly held that section 69-14-240, MCA, imposes no sta-tutory duty on a ra.ilroad with regard to obstruction of surface 

waters. We believe the LeMunyon holding is manifestly incorrect and must therefore be overruled. 

Relying on definitions of surface waters and watercourses Laid down in F0rdha.m v. Northern Pacific Ry. Co. 

(1904), 30 Mont. 421, 76 P. 1040 (set forth below) and the 

facts presented, the Court found that the water in question 

was surface water as opposed to water running in a watercourse. Reciting the common law rule to the effect that 

surface water is "the enemy of all mankind.," against which 

each owner is legally entitled to protect his land, the Court 

concluded the rule was not altered by what was then section 
4362, Revised Codes, a codification of a 1903 Act, now section 69-14-240(1), MCA. That section then provided: 

"It shall be the duty of every corporation, company, or person owning or operating any railroa-d, or branch thereof, in 

this- state, and of any corpora.tion, 

company, or person constructing any 

railroad in this state, within three 

months after the completion of the same 

through any county in this state, to 

cause to be constructed and maintained 

suitable ditches and drains along each 

side of the roadbed of such road or to 

construct culverts or openings through 

such roadbed to connect with ditches or 

drains, or watercourses, so as to afford 

sufficient outlet to drain and carry off 

the water along such railroad whenever 

the draining of such water has been 

obstructed or rendered necessary by the 

construction of such railroad; provided 

that none of the drains or ditches herein 

referred to shall he required to be 

constructed by any of the persons or 

corworations herein named or described, 

except when required - to remove and drain 

off water accumulated upon property 

adjacent to or upon the right of way 

whose natural channel or outlet has been 

destroyed or impairedby the embankment 

of such railway so constructed as aforesaid. . . ." (Emphasis added.) 

The Court held: 

". . . That portion of section 4362, 

supra, included within the exception or 

proviso, which mentions 'natural channel' 

or 'outlet1 refers back to the first or 

main body of the section, fixing the 

requirements of railroad. corporations as 

to ditches, drains, and watercourses, and 

means 'ditches,' 'drains,' or 'watercourses' as therein expressed, and hence 

the provisi.ons of this section likewise 

afford no relief to the respondent." 60 

Mont. at 525, 199 P. at 917. 

This view has been followed for more than sixty-two years. 

Where the intention of the legisl-ature can be determined from the plain mea.ning of words used in a statute, 

courts may not go further and apply any other means of interpretation. Tongue River Elec. Coop. v. Mont. Power Co. 

(Mont. 1981), 636 P.2d 862, 38 St.Rep. 2032. 
In construing a statute, our duty is simply to ascertain and declare what is in terms or in substance contained 

therein. We may not insert what has been omitted or omit 

what has been inserted. Section 1-2-101, MCA. 

The statutory language before the proviso required 

construction and maintenance of ditches and drains to connect 

with "ditches or drains or watercourses" to carry off water 

impounded hy a railroad embankment. The proviso was a limitation on the general rule: Drains and ditches will be required only to drain off accumulated wa.ter whose "natural 

channel or outlet" has been destroyed or impaired by the 

embankment. The LeMunyon opinion equated the words "natural 

channel or outlet" in the proviso to the words "ditches or 

drains or watercourses" in the principal clause and apparently concluded from this that the word "watercourses" was 

intended to be included in the proviso and that therefore the 

statute did not contemplate surface water, only watercourses. 

This severely limiting construction overlooks the 

obvious principal purpose of the statute, which was to change 

the common law rule as it applied to railroads. The statute 

speaks not only of "watercourses, " but "ditches, " f drain.^, " 

"~ulverts," "openings," and "outlets" to drain and carry off 

water ". . . whenever the draining of such water has been 

obstructed" and rem0vin.g and draininq off water accumulated 

upon nonrailroad property. Clearly the statute was intended 

to deal with impounded water of any kind, without regard to 

the nice distinction made between surface water and a watercourse in Fordham, 30 Mont. at 431, 76 P. at 1043: 

". . . If the flood water becomes severed 

from the main current, or leaves the same 

never to return, and spreads out over the 

lower ground, it becomes surface water. 

But if it forms a continuous body with 
the water flowing in the ordinary channel, or if it departs from such channel 

presently to return, it is to be regarded 

as still a part of the stream. . . ." 

While it might be said, as the commissioner did, that 

the proviso words "natural channel or outlet" refer to the 

principal clause, it is not possible to comprehend from his 

opinion how he equated those words to the words "ditches, 

drains or watercourses" in the principal clause. The context 

is n.ot even the same. The latter words are used to describe 

the places to which the vagrant water is to be returned. The 

former words are used to describe the places from which the 

vagrant water came as a result of the embankment. There is 

no rule of statutory construction that would approve of this 

contextual flip-flop. 

Even if by this literary legerdemain one reads the 

words "ditches or drains or watercourses" into the proviso to 

substitute for the words "natural- channel or outlet" set 

forth therein by the legislature, the limitation imposed bv 

the LeMunvon court decision could not be sustained. To do so 

we would be required to give meaning to the word "watercourses" and to ignore the words ditches and drains. In construing a statute we are required to consider it as a whole and, 

if possible, give meaning to every word contained therein. 

Section 1-2-101, MCA; State ex rel. Cashmore v. Anderson 

(1973.), 160 Mont. 175, 500 P.2d 921. In doing so here, we 

would have to recognize that ditches and drains carry surfa.ce 

waters as well as water in watercourses as defined in 

Fordham, supra. Thus, even if the tortured construction 

rendered in LeMunyon is accepted, it would not support the 

conclusion that the proviso limited application of the statute to watercourses. 
We must assume that the legislature does not perform 

idle acts. Section 1-3-223, MCA. An interpretation that 

gives effect is always preferred to one that makes a statute 

void or treats a statute as mere surplusage. American Linen 

Supply v. Dept. of Revenue (Mont. 1980), 617 P.2d 131, 37 

St.Rep. 1707. The LeMunyon construction reduced the statute 

to mere surplusage, making it nothing more than a codification of the common enemy rule. 

Viewing the statute as written, rather than as artificially reconstructed, we reach the unavoidahle conclusion 

that the legislature intended to change the existing law and 

set aside the common enemy rule as applied to railroad embankments in favor of the adopted maxim, " [olne must so use 

his own rights as not to infringe upon the rights of another." Section 1-3-205, MCA. Our conclusion is reinforced by 

interpretations of a comparable Missouri statute by that 

state's courts (Cox v. Hannibal & St. J. F.. Co. (1903), 174 

Mo. 588, 74 S.W. 854, and Murphy v. St. Louis-San Francisco 

R. Co. (1920), 205 Mo.App. 682, 226 S.W. 637) and confirmed 

by the United States Supreme Court (Chicago & Alton R. Co. v. 

Tranbarger (1915), 238 U.S. 67, 35 S.Ct. 678, 59 L.Ed. 1204). 

Section 69-14-240(1), MCA, is the same as section 4362 

Revised Codes, the statute construed by the LeMunyon court, 

except for the conversion of the proviso clause into a separate sentence during codification. 

It is apparent then that section 69-14-240, MCA, was 

misconstrued in LeMunyon. 

BN nevertheless contends that under the doctrine of 

stare decisis we must follow this prior contrary holding. 

While stare decisis is a fundamental doctrine which reflects 

our concerns for stability, predictability and equal 
treatment, stare decisis does not require that we follow a 

manifestly wrong decision. State v. Fischl (1933) , 94 Mont. 

92, 20 P.2d 1057; State v. District Court of Fourth Judicial 

Dist. (1965), 145 Mont. 287, 400 P.2d 648. See also, Jepson 

v. Department of Labor & Industries (1977), 89 Wash.2d 394, 

573 P.2d 10. LeMunyon is therefore overruled insofar a.s it 

held that section 69-14-240, MCA, imposes no d.uty on a railroad for obstruction of surface waters. 

Reversed and remanded. 

sse Honorable Cor on 

District Judge, sitting in 

place of Mr. Chief Justice 

Frank I. Haswell 

We concur: 

District Judge, sifztihg in 

place of Mr. Justice Frank R. 

Morrison, Jr. 
Mr. Justice Fred J. Weber respectfully dissents as 

follows: 

I dissent from the majority holding that - Le Munyon and 

case law consistent with that 192,- opinion misconstrue 

section 69-14-240, MCA. Nothing in the statutory language 

nor the legislative history indicates that the Montana 

legislature intended to hold railroads to a higher dutv of 

care in managing surface water than the duty imposed on other 

property owners. 

"An uphill property owner owes no duty to his 

downhill neighbor to prevent the encroachment of 

such vagrant or surface waters from his property 

onto his neighbor's. Le Munyon v. Gallatin Valley 

Ry. Co., 60 Mont. 517, 199 P. 915. This Le Munyon 

rule has been reviewed and affirmed from-time to 

time in the following Montana cases: Sylvester v. 

Anaconda Min. Co., 73 Mont. 465, 236 P. 1067; 

O'Hare v. Johnson, 116 Mont. 410, 153 P.2d 888; 

State Highway Comm'n v. Biastoch Meats, Inc., 145 

Mont. 261, 400 P.2d 274. Accordingly, defendant is 

entitled to judgment as a matter of law." Roope v. 

The Anaconda Company (1972), 159 Mont. 28, 33, 494 

P.2d 922, 924. 

In reaching the "unavoidable conclusion that the 

legislature intended to change the existing law and set aside 

the common enemy rule as applied to railroad embankments," 

the majority overrules - Le Munyon and 62 years of precedent, 

which consistently found to the contrary. The predecessor to 

section 69-14-240, MCA was enacted in 1903. At no time in 

the intervening 80 years has our legislature amended the 

statute to include surface waters. 

The majority cites Missouri case law to bolster its 

discovery of legislative intent regarding surface water. The 

1879 version of Missouri's statute is identical to the 

challenged language in the first part of section 69-14-240, 

MCA. See Rev.St.Mo. S 810 (1879). However, in 1907 the 

Missouri legislature added the critical element underscored 

below: 
"It shall be the duty of every corporation, company 

or person owning or operating any railroad or 

branch thereof in this state, and of any 

corporation, company or person constructing any 

railroad in this state, within three months after 

the completion of the same through any county in 

this state, to cause to be constructed and 

maintained suitable openings across and through the 

right of way and roadbed of such railroad, and 

suitable ditches and drains along each side of the 

roadbed of such railrcad, to connect with ditches, 

drains or water courses, so as to afford sufficient 

outlet to drain off the water, including surface 

water, along such railroad whenever the draining of 

such water has been obstructed or rendered 

necessary by the construction of such railroad; . . .. " Rev.St.Mo. S 3150 (1909). See Rev.St.Mo. 

§ 389.660 (1-978). 

This amendment nullifies the precedential value of the 1915 

and 1920 cases cited as authority in the majority opinion. 

Cox v. Hannibal and St. Joseph R. Co. (19031, 174 Mo. 

588, 74 S.W. 854 is limited authority for the majority 

position. In Missouri, - Cox was approved by the 1907 

legislative addition of "surface water" to its statute. 

Montana had the same legislative opportunity as Missouri, but 

chose not to exercise it. That is a portion of our history 

which was not considered by the majority. 

The majority's statutory reinterpretation imposes a new 

duty upon the railroad without defining that duty'. Plaintiff 

here characterized the offending water as surface water and 

rain water. The majority opinion apparently imposes a duty 

upon Burlington Northern to accept adjoining property owners' 

surface water. It does not specify how the railroad is to 

manage these waters once they are diverted from adjoining 

lands into the railroad's ditches and culverts. The Supreme 

Court of Missouri has held that: 

"'The law places upon a railroad no duty (and 

grants a railroad no permission) to enter upon any 

servient land to construct or to enlarge any 

existing ditch, drain or watercourse to increase 

its water carrying capacity,' Smithpeter v. Wabash 

R. Co., supra, and a railroad may not make an 

opening in its roadbed and discharge accumulated 

surface water on an adjacent proprietor, when no 
ditch, drain or watercourse exists to carry it away 

without incurring liability for such action." 

Temple v. Atchison, Topeka & Santa Fe Railway Co. 

(1967), 417 S.W.2d 97, 100. 

A new duty to drain off or remove accumulated surface waters 

from adioining property has been created here. I believe the 

judiciary, like the legislature, has an obligation to define 

the limits of any duty it imposes upon individual or 

corporate citizens. 

Last, I am troubled by ex post facto application of the 

majority's holding. The District Court's summary judgment in 

favor of the defendant was a correct ruling based on the law 

at that time. To reverse that judgment, the majority has 

overruled long-standing precedent. The cause is remanded for 

a determination of liability for failure to perform a duty. 

According to rulings of this Court in effect at the time of 

the flooding, that duty did not exist. In remanding the 

cause to be tried under new law, the majority not only 

imposes a new duty upon the defendant, hut instructs the 

District Court to apply 1983 law to 1980 facts. 

"The construction given to a statute, although 

erroneous, before its reversal or modification, 

becomes a part of it as much as though written into 

it; and the change made in construction will affect 

only contracts made thereafter." Montana Horse 

Products Co. v. Great Northern Ry. Co. (1932), 91 

Mont. 194, 216, 7 P.2d 919, 927. 

The issue of liability for flooding that occurred prior - to 

this Court's reconstruction of the statute and reversal of Le 

Munyon should not be affected by today's ruling. 

I would affirm the District Court and leave the changing 

of the statute to the legislature. /'--TI l/ - 

I join in the foreqoinq d 

f