Yo. 83-143 INTHE SUPREME COURT OF THE STATE OF MONTA??A 1983

FORMICOVE, INC., Plaintiffand Appellant,

-vsBURLINGTON NORTHERN, INC

# ., Defendantand Respondent.

APPEAL FROM: DistrictCourtof theEighthJudicial District, Inand forthe County of Cascade, TheHonorableJohn M. McCarvel, Judge presiding.

COUNSEL OF RECORD: ForAppellant: Dzivi, Conklin & Nybo; SusanJ. Rebeck, GreatFalls, Montana

ForRespondent: CharlesC. Dearden, Billings, Montana

Filed: Submitted: September 21, 1933 Decided: December 20, 1983

ClerkHonorable 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 claimsBN's failure tomaintain its culvertscaused 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 surfacewaters and granted RN summary judgment. Thedispositive issue here iswhether the LeMunyon case correctlyheld that section 69-14-240,MCA, imposesno sta-tutory duty 

### on a ra.ilroadwith regard to obstructionof surface waters. We believe the LeMunyon holding ismanifestly incorrectandmust thereforebe overruled. Relying on definitions of surface waters and watercourses Laid down in F0rdha.mv. 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 protecthis 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 thenprovided: "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 sufficientoutlet 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 thatnone of the drains orditches 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.

# . .." (Emphasisadded.) TheCourtheld: 

# ".

.. That portion of section 4362, supra, included within the exception or proviso, which mentions 'natural channel' or 'outlet1refers back to the first or main body of the section, fixing the requirements of railroad.corporations as toditches,drains,andwatercourses,and means 'ditches,' 'drains,' or 'watercourses' as therein expressed,and hence the provisi.onsof 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-aturecan be determined from the plain mea.ningof words used in a statute, courts may notgo furtherand apply any othermeans 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 hasbeen inserted. Section 1-2-101,MCA. 

### The statutory language before the proviso required constructionandmaintenance of ditches and drains to connect with "ditches 

### or drains or watercourses" to carry off water impounded hy a railroad embankment. The provisowas 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 thewords "natural channel or outlet" in the proviso to the words "ditches or drains or watercourses" in the principal clauseand apparently concluded from this that the word "watercourses" was intended to be included in theproviso and that therefore the statutedid notcontemplate surfacewater,only watercourses. This severely limiting construction overlooks the obviousprincipal 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.gand draininq off water accumulated upon nonrailroad property. Clearly the statutewas intended to deal with impounded water of any kind,without regard to the nice distinction made between surfacewater and a watercourse in Fordham, 30 Mont. at 431, 76 P. 

### at 1043: 

# ".

. . If the floodwaterbecomes severed from the main current,or leaves the same never to return,and spreadsout 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 orwatercourses" in the principal clause. The context is n.oteven the same. The latterwords are used to describe theplaces towhich thevagrantwater is to be returned. The former words are used to describe the places fromwhich 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 orwatercourses" 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 notbe sustained. Todo so
wewould be required to givemeaning to the word "watercourses" and to ignore thewords ditches and drains. In construing a statutewe 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 towatercourses.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 thatmakes a statute void or treats a statute asmere 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, 

### "[olnemust 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 equaltreatment, stare decisis does not require that 

### we follow a manifestly wrong decision. State v. Fischl (1933)

## , 94Mont. 92, 20 P.2d 1057; State

### v. DistrictCourt 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.sit held that section 69-14-240,MCA, imposes no d.utyon a railroad for obstructionof surfacewaters. Reversed and remanded.

# sse Honorable Cor on District Judge, sitting in place of Mr. Chief Justice Frank I. Haswell

We concur:

DistrictJudge, sifztihg in place ofMr. 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 inmanaging 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. GallatinValley Ry. Co., 60Mont. 517, 199 P. 915. This Le Munyon rule has been reviewed and affirmed from-time to time in the following Montana cases: Sylvesterv. 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 judgmentas amatter 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 62years 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 surfacewaters. The majority cites Missouri case law to bolster its discovery of legislative intent regarding surfacewater. 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:"Itshallbe 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 orwater courses,so as to afford sufficient outlet to drain off the water, including surface water,along such railroadwhenever 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 opportunityasMissouri, 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 railroadwithout 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 adjoiningproperty 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 ofMissouri 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 itswater carrying capacity,' Smithpeterv. 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 noditch,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 surfacewaters from adioiningproperty has been created here. 

### Ibelieve 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'sholding. The District Court's summary judgment in favor of the defendantwas 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 DistrictCourt 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 asmuch as thoughwritten into it; and the change made in constructionwill 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 reconstructionof the statuteand reversal of Le Munyon should notbe affectedby today's ruling. Iwould affirm the District Court and leave the changing of the statute to the legislature. 

# /'--TI 

# l/ -

I join in the foreqoinq

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f