No. 13243 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

GEORGE RAUSER and PHYLLIS A. 

RAUSER, husband and wife, 

Plaintiffs and Respondents, 

THE TOSTON IRRIGATION DISTRICT, MAURICE L. 

HUNSAKER, FRANK J. SLIFKA, and SAMUEL F. 

KIRSKEY, the members of the Board of Commissioners 

of said TOSTON IRRIGATION DISTRICT, 

Defendants and Appellants. 

Appeal from: District Court of the First Judicial District, 

Honorable Peter Meloy, Judge presiding. 

Counsel of Record: 

For Appellants: 

Corette, Smith and Dean, Butte, Montana 

Kendrick Smith argued and Gerald Allen argued, Butte, 

Montana 

Holter, Heath and Kirwan, Bozeman, Montana 

For Respondents: 

Harrison, Loendorf and Poston, Helena, Montana 

James T. Harrison, Jr. argued, Helena, Montana 

For Amicus Curiae: 

Thomas Olson, Billings, Montana 

Alvin E. Bielefeld argued, Billings, Montana 

Submitted: March 17, 1977 

Decided: bjUN -6 

Filed: f 6 i$n 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

George Rauser and Phyllis Rauser, husband and wife, brought 

this action in the district court, Broadwater County, against the 

Toston Irrigation District and members of the Board of Commissioners 

of that District. The complaint alleged a portion of Rausers' land 

was taken without compensation, and construction of the irrigation 

project with resultant seepage caused water to stand stagnant on 

approximately forty acres of plaintiffs' land situated along Warm 

Spring Creek. It alleged this amounted to the taking of a flood 

easement. 

Defendant's motion to strike the individual board members 

as parties was granted. Trial was had before a jury and a verdict 

returned in favor of Rausers in the amount of $100,000. 

The Toston Irrigation Project consists of the Crow Creek pump 

unit and a water delivery system built as a part of the Missouri 

River Basin Project. The land to be irrigated was to serve as a 

replacement for lands flooded by Canyon Ferry Reservoir. The project began in 1955 with fewer than a thousand acres under irrigation. 

At present it covers nearly five thousand acres. 

Plaintiffs are not members of the Toston Irrigation District 

but their land is bounded one one side by land in the District. 

The acreage alleged taken is at a lower elevation than land in the 

District. 

Each party presented expert hydrological testimony and expert 

valuation testimony. Plaintiffs' hydrological expert testified 

the source of the water on the Rauser property was to the south and 

east, basing his opinion on well readings taken over a substantial 
number of years. Along with other factors, he took into consideration the extent of irrigation in the District and the rainfall. 

He also read into evidence from a United States Geological Survey 

document entitled "Geology and Occurrence of Ground Water in Townsend Valley, Montana" the following statement : 

"The application of additional irrigation water to the 

benchland flanking Warm Spring Creek will increase the 

extent of waterlogging in the bottom land unless provision is made for more adequate drainage. In this part of 

the valley the Tertiary sand and gravel deposits, which 

are mantled by permeable windblown soil, are underlain by 

beds of hardened clay, locally referred to as 'hardpan. I 

If water is applied to these lands, a gradual rise in the 

water table will take place. This rise will result in the 

increased flow of existing springs in the lower part of 

the valley, and new springs will appear along the slope 

from the benchland to the valley bottom. In this area the 

valley bottom is underlain by relatively impermeable finetextured clay. The capillary fringe above the water table 

will rise to the surface in much of the bottom land, saline 

soil will develop, and the land will eventually become unproductive. Water logging will become more extensive if irrigation water is applied to the benchland that lies at a 

higher elevation than the present irrigated land unless 

provision is made for more adequate drainage. This condition will exist not only in the Crow Creek area but also 

in other parts of the valley where additional irrigation is 

planned .I1 

The expert indicated his findings confirmed this prediction, 

George Ranser testified the diminution of value because of 

the "taking" totaled $100,000. Plaintiffs' expert valuation witness testified the loss was in the range of $35,000 basing his 

opinion on comparable sales of three nearby parcels. 

Defendant's hydrological expert testified the cause of the 

flooding on plaintiffs' land was the enlargement of plaintiffs' 

own irrigation ditch which created a barrier to the natural drainage 

of the land. Defendant's valuation expert placed the total loss 

at $26,000. 

-3- 
The parcel affected by the water includes the land where 

plaintiffs' home, shop and outbuildings are located. The United 

States government built and owns the physical assets of the irrigation system. Almost from the beginning of irrigation on the project, 

there have been negotiations between Rausers and the District about 

the flooding of the land and proposals to drain it. The District 

went so far as to draw up plans and obtain bids for a drain system, 

but because the bid was substantially more than expected nothing 

further was done. 

The Toston Irrigation District appeals. We summarize the 

issues as these: 

(1) May an irrigation district exercise the power of eminent 

domain on a project whose-.physical assets are owned by the federal 

government? 

(2) May there be a condemnation of property without a showing 

of negligent design, construction, or operation of the project. 

(3) Was the action barred by laches? 

(4) Was the verdict supported by substantial credible 

evidence ? 

(5) Are attorney fees allowable? 

(6) Was there an adequate description of the land here involved? 

Issue (1) The power to condemn property is granted to 

irrigation districts by Montana statute, section 89-1301(3), R.C.M. 

1947, and states: 

"(3) The board * * * shall also have power and authority to 

acquire by purchase, lease, contract, condemnation, or other 

legal means, lands (and rights in lands) for rights of way, 

for reservoirs, for the storage of needful waters, and for 

dam sites, and necessary appurtenances, and such other lands 

and property as may be necessary for the construction, use, 

maintenance, repair, improvement, enlargement and operation 

of any district system of irrigation works." 
That the physical assets are owned by the United States 

government does not limit the power to condemn. Section 89-1301(7) 

clearly indicates substantial federal involvement is contemplated 

in "construction, operation, and maintenance of the necessary works 

for the delivery and distribution of water therefrom * * *.'I Defendant argues the trial court lacked jurisdiction because the 

physical assets are owned-by the United States. This argument must 

fail for no efforts were made on the part of defendant to remove the 

case to federal court and no case authority is cited or relied upon 

to support defendant ' s position. 

While the District questions whether there was in fact a 

taking here and the compensability of it, case law holds there can 

be a taking without a total physical appropriation of land. Here 

the District did not condemn the land, rather it caused the land to 

be permanently invaded by the percolation of water. Similar fact 

cases have been considered by the United States Supreme Court recognizing the rights of the damaged landowner. United States v. Kansas 

City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L ed 1277; United 

States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L ed 539; 2 Nichols 

on Eminent Domain, Taking and Damage 56.32. 

Issue (2). Whether there may be a taking by the District without 

a showing of negligence in design, construction, or operation of the 

District? 

In actions for damage for seepage the rule as stated in 

Fleming v. Lockwood, 36 Mont. 384, 391, 92 P. 962, and quoted in 

Rhodes v. Weigand, 145 Mont. 542, 549, 402 P.2d 588, is: 

"* * * If, in fact, the seepage occurred as plaintiff 

contends, it must have been the result of negligence 

on ~ockwood's part, either in constructing or operating 

the ditch, since it is not contended that it was the 

result of inevitable accident or was caused'by an.act 
of God; and therefore the plaintiff had the burden of 

proof, in the first instance, to show negligence on 

the part of the defendant." 

The District cites Fleming as authority for the fact that to 

have a recovery here there must be intentional or negligent acts. 

Fleming,a negligence case, provided for payment in the case of 

intentionally caused torts. The District cites Rhodes as authority, 

but there this Court provided for the issuance of an injunction, 

noting : 

"The record in this cause discloses with clarity that 

appellant in the year 1947, again in 1961 and again, 

after complaint had been made to him of flooding in 

the year 1962, persisted in his negligent and deliberate 

acts .I1 

Montana's case law does not require a showing of negligence 

or a theory of negligence when faced with deliberate or intentional 

acts. In Calvert v. Anderson, 73 Mont. 551, 555, 236 P. 847, the 

Court held: 

"It is the rule in this state that the owner of an 

irrigating ditch is not an insurer thereof and is liable 

only for damages caused by his willful acts or by his 

negligence in constructing, maintaining or using his ditch." 

However, as we will discuss later, Fleming and Rhodes are not 

applicable to the facts of the instant case. 

In Rhodes the court found that the rule which requires a showing 

of negligence was met by deliberate acts, the flooding of plaintiff's 

land. 

The instant action is one for inverse condemnation. The 1972 

Montana Constitution, Art. 11, Section 29, provides: 

"Private property shall not be taken or damaged for 

public use without just compensation to the full extent 

of the loss having been first made to or paid into court 

for the owner. In the event of litigation, just compensation 

shall include necessary expenses of litigation to be awarded 

by the court when the private property owner prevails." 
An early Montana case, Less v. City of Butte, 28 Mont. 27, 32, 

72 P. 140, in construing this identical language in the 1889 Constitution "Private property shall not be taken or damaged for public 

use without just compensa-tion * * *I' said: 

"* * * Under constitutions which provide that property 

shall not be 'taken or damaged' it is universally held 

that 'it is not necessary that there be any physical 

invasion of the individual's property for public use to 

entitle him to compensation.' * * *'These easements are 

property, protected by the constitution from being taken 

or damaged without just compensation. ' * * * Moreover, it 

may frequently occur that 'the consequential damage may 

impose a more serious loss upon the owner than a temporary 

spoliation or invasion of the property. ' " 

In the ordinary condemnation case necessity, valuation and 

the like are the issues to be determined---fault or negligence are 

not considered authority. The rule stated in Fleming that an 

irrigation district is not an insurer of its ditches from damage 

as a result of acts of God or against occasional damage which occurs 

even though the district has exercised due care, does not apply to 

the facts here. Here the damage done by the project was foreseeable 

and foreseen. It was inevitable that Rausers' land would be damaged 

by the construction of the project, absent remedial work. Almost 

from the outset Rausers sought to have the damage remedied and as 

the amount of water used by the project increased, so did the 

Rausers' complaints. Where, as here, the damages are known or 

knowable and are an inevitable result of the intentional undertaking 

of the project, there is no need to show negligent design, construction 

or operation. It is enough to show the damages were proximately 

caused by the undertaking of the project and a reasonable foreseeable consequence of the undertaking. It is implicit in inverse condemnation that the extent of the damage be of such a degree as to 

amount to a taking of an interest in the property damaged. Albers 

v. County of Los Angeles, 42 Cal.Rptr. 89, 96, 398 P.2d 129, 136; 

20 Hastings Law Journal 431. 
Historically it appears inevitable to each new irrigation 

project that certain unexplained and unplanned for problems arise 

that damage adjacent property owners. In many instances there is 

no negligence or other wrongful conduct or omission on the part of 

defendant. The injured property owners have sought redress for 

damages on the alternative theories of inverse condemnation and tort, 

as applied to the facts. Bauer v. County of Ventura, 45 Cal.2d 276, 289 

P.2d 1; Granone v. County of Los Angeles, 231 Cal.App.2d 629, 42 

Outstanding in the cases of this type is the holding of the 

California Supreme Court in Albers: 

"From the foregoing analysis of the cases and other 

legal authorities it is apparent that we are not required 

to choose between two absolute rules, one of liability and 

one of nonliability, but are faced with a more limited issue. 

The question is not whether in all cases, a property owner 

should not be permitted to recover in an inverse condemnation 

action if a private party would not be liable for damages 

similarly inflicted, but whether there is or should be a 

qualification or limitation of that rule to the effect that 

the property owner may recover in such an action where 

actual physical damage is proximately caused to his property 

by a public improvement as deliberately planned and built * * *." 398 P.2d 136. 

The California Court concluded that such damages are compensable 

and adopted five factors for consideration. We find this case 

applicable to the instant case and adopt as guides the five factors. 

1) The damage to this property, if reasonably foreseeable, would 

have entitled the property owners to compensation; 2) the likelihood 

of public works not being engaged in because of unforeseen and unforeseeable possible direct physical damage to real estate is remote; 

3) the property owners did suffer direct physical damage to their 

properties as the proximate result of the works as deliberately 

planned and carried out; 4) the cost of such damage can better be 

absorbed, and with infinitely less hardship, by the taxpayers as a 
whole, than by owners of the individual parcels, and t5) to quote from 

Clement v. State Reclamation Board, 35 Cal.2d 628,642, 220 P.2d 897, 

905, "the owner of the damaged property if uncompensated would 

contribute more than his proper share to the public undertaking." 

The California Court then noted, quoting from an ea~rly opinion, 

Bacich v. Board of Control, 23 Cal.2d 343, 351, 144 P.2d 818, 823, 

quoting from Sedgwick on Constitutional Law: 

""'The tendency under our system is too often to 

sacrifice the individual to the community; and it 

seems very difficult in reason to show why the State should 

not pay for property which it destroys or impairs the value, 

as well as for what it physically takes. * * ,*.""' a 

Issue 3. The District argues the action is barred by laches. 

The project was begun in 1955 and this actions was not initiated until 

1973. The evidence reveals that complaints were made to the 

District almost from the outset and remedial action was discussed 

until sometime just prior to the commencement of this action. 

Laches is an equitable defense. This Court in Davis v. Steingruber, 

131 Mont. 468, 470, 311 P.2d 784, said: 

"Laches means negligence in the assertion of a right, and 

exists where there has been a delay of such duration as to 

render enforcement of the asserted right inequitable ." 

there is no unexplained delay which would justify 

>, 

ths application of the doctrine of laches and there is no prejudice 

sufficient to justify the application of. laches. Thus the action 

is not barred by laches. The districtI1s actions lulled plaintiffs 

throughout the years between the beginning of the District and the 

filing of the action. 

Issue (4). Is the verdict supported by the evidence? This 

involves two questions. First, was the United States Geological 

report entitled "Geology and Occurrence of Ground Water in the 

Townsend Valley,Montana1' admissible into evidence over a hearsay 

objection? This document contains a detailed description of the 
geography, geomorphology, geology, ground water, and chemical quality 

of the water and has a short summary and conclusion section. Plaintiffs' hydrology expert used the data in the nearly 50 pages of 

measurements of water level observation wells along with the general 

information in the document, as an aid in his analysis of the ~ausers' 

probdkm. The expert testified as foundation that (1) the information 

was available to the public and others in his profession; (2) the 

document and others like it were recognized as authorities and relied 

upon by professionals in their field of work, and (3) the document was 

prepared in the normal course of business by the agency prior to the 

building of the irrigation project. 

Section 93-1101-8, R.C.'M. 1947, states: 

"Historical works, books of science or art, and 

published maps or charts, when made by persons indifferent 

between the parties, are prima-facie evidence of facts of 

general notoriety and interest." I 

An early case interpreting section 93-1101-8, Lynes v. Northern 

Pacific Ry. Co., 43 Mont. 317, 329, 117 P. 81, discussed this section 

as it related to the admissibility of certain tables of results of tests 

made on air brakes on trains of different tonnage. The tables were 

offered to corroborate the expert's opinion and as independent 

evidence of the facts shown. The Court said: 

"* * * if the proper preliminary proof is made, viz., 

that the book or chart offered is by a person indifferent 

between the parties litigant, is standard among the profession, trade or occupation to which it relates, and is 

accepted and acted upon as accurate, it should be admitted, 

upon the theory that the matters which it contains are facts 

, , of ,general riotariety'and inte?est ." 

The document here involved is similar to the one involved 

in Lynes and was offered for substantially the same purposes. The 

foundation required for the admission, that it was prepared prior to 

litigation by parties indifferent between the parties and that it is 
accepted as an authority and relied on as such, is sufficient 

assurance of the truth of the matters contained therein and thus 

excepts it from the requirement that the speaker be available for 

cross-examination. 

We note here that the portion of the summary and conclusion 

read into evidence does not speak to the existence of present harm, 

only predicts such harm. It goes not to the truth of the issue, 

but to the knowledge or intent of the builders of the project. 

The District argued the jury disregarded the evidence that the 

District was not responsible for any seepage past the point of 

delivery at the headgates. The evidence of where the seepage came 

from was a matter for the jury to decide and was decided against the 

contentions of the District. There was considerable evidence to 

support the jury' s decision. 

Second, as to the other challenges made to the determination 

of cause and the valuation--is there substantial credible evidence 

to support the verdict and judgment? That is the scope of this 

Courts review, State Highway ~omrn'n v. Vaughan, 155 Mont. 277, 

470 P.2d 967. 

As to cause, both parties presented a number of witnesses, 

including two highly qualified and extremely convincing expert 

witnesses who gave conflicting explanations of the cause of the 

injury. There is substantial credible evidence for the jury's 

findings of cause. 

As to valuation, it is true the amount the jury returned as 

~ts verdict is the highest amount testified to and this testimony 

was by the landowner. This Court has permitted the landowner to 

testify as to the value of his land within certain limits. In State 

Highway Comm'n v. Barnes, 151 Mont. 300, 305, 443 P.2d 16, this 

Court, quoting a prior case, said: 
"we now restate the rule to be that an owner, upon 

prima facie proof of ownership, shall be qualified to 

estimate in a reasonable way the value of his property 

for the use to which he has been putting it. Such owner 

is not qualified by virtue of ownership alone to testify 

as to its value for other purposes unless he possesses, as any 

other witness as to value, "some peculiar means of forming 

an intelligent and correct judgment as to the value of the 

property in question beyond what is presumed to be possessed 

by men generally." '" 

Here, as in Barnes, the landowner testified to the value of 

the land as it was being used. 

While the District argues that Rauser's value ..testimony is 

incredible, it should be noted that within the 40 acres involved 

are all the buildings of the ranch. He testified the water problems 

began with the commencement of the project: that his two separate 

basements were flooded; the septic tank would not function; that 

land near the home is inundated the year around; that he could not 

- 

use his calving area in the winter and a new one had to be built; 

that he could not keep corrals clean because of the water; and that 

he had to get out of the hog business a value to the ranch operation. 

With that as a background, he went on to testify as to the 

value of his ranch before and after the taking. The trial judge 

did not abuse his discretion in allowing this testimony. 

Issue (5). This issue involves attorney fees and consists of 

two questions. First, does the court have the power to award 

attorney fees in an inverse condemnation case? Second, were attorney 

fees properly awarded in this case? 

First. Art. XI, Section 29, 1972 Montana Constitution provides: 

"Private property shall not be taken or damaged for 

public use without just compensation to the full extent 

of the loss having been first made to or paid into court 

for the owner. In the event of litigation, just compensation shall include necessary expenses of litigation to be 

awarded by the court when the private property owner prevails. I I 
The statute implementing the last sentence of Art. 11, Section 29, 

is section 93-9921.1, R.C.M. 1947, which provides: 

 h he condemnor, shall within thirty (30) days after an 

appeal is perfected from the commissioner's award or 

report, submit to condemnee a written final offer of 

judgment for the property to be condemned, together with 

necessary expenses of condemnee then accrued. 

"If any time prior to ten (10) days before trial 

the condemnee serves written notice that the offer is 

accepted, either party may then file the offer and notice 

of acceptance together with proof of service thereof and 

thereupon judgment shall be entered. An offer not accepted 

shall be deemed withdrawn and evidence thereof is not 

admissible at the trial except in a proceeding to determine 

costs. The fact that an offer is made but not accepted does 

not preclude a subsequent offer. In the event of litigation, 

and when the private property owner prevails, by receiving 

an award in excess of the final offer of the condemnor, the 

court shall award necessary expenses of litigation to the 

condemnee ." 

For future reference in such controversies, we note here 

that the 1977 Montana Legislature passed House Bill No. 483, now 

Chapter 48, 1977 Session Laws. This is an act to define and 

provide a manner for computing the amount of necessary expenses 

of litigation required by section 93-9921.1, R.C.M. 1947. While 

not effective for the instant case, all cases arising after July 1, 

1977, the effective date of the act, will come under this act. 

In State v. Olsen, 166 Mont. 139, 147, 531 P.2d 1330, 

the Court found the 1972 Constitution and the statute implementing it 

required payment of expert witnesses and attorney fees. 

We note that section 93-9921.1, R.C.M. 1947, does not use the 

terms "plaintiff" and "defendant" as do most of the prior sections 

in the eminent domain chapter, Chapter 99, Title 93. 

In Frustuck v. City of Fairfax, 41 Cal.Rptr. 56, attorney fees 

were denied in an inverse condemnation case. There the court rested 

its decision on two factors (1) that the word "defendant" was used 

in the eminent domain attorney's fee statute indicating that the 
attorneyFs fee statute applied only to the statutory procedure, 

and (2) there was no constitutional requirement that attorney fees 

be paid in an eminent domain action in California. 

However, in a recent case, Holtz v. San Francisco Bay Area 

Rapid Transit District, 131 Cal.Rptr. 646, 552 P.2d 430, 436, footnote 

the court notes : 

"It is asserted that since federal law makes it clear 

that litigation costs are not recoverable in an inverse 

condemnation if a 'tort' is alleged, section 1246.3 must be 

interpreted so as to prohibit the award of litigation costs 

in actions alleging damage to real property. Aside from the 

fact that no such limitation is made by section 1246.3 and 

that, as we conclude above, the loss of lateral support may 

be characterized as a taking of an interest in real property, 

this argument ignores the established principle that recovery 

in inverse condemnation is based on the constitutional provision requiring just compensation,not on a theory of tort. 

(Reardon v. San Francisco, supra, 66 Cal. 492, 505, 6 P. 317.) 

We have consistently rejected the contention that the right 

to recover in eminent doxhafn .derives from'tort doetrine,'emphasizing that as a matter of policy the owner of property 

taken or damagd for public use should not contribute a disproportionate share of the cost of a public undertaking. 

{Citing cases]" 

In Montana, precisely the opposite is true. "Condemnor" and 

11 condemneel' are used in the attorney's fee statute in contrast to 

the rest of the chapter which speaks of "defendant1' and "plaintiff" . Further, there is a clear constitutional requirement that attorney 

fees be paid in condemnation cases where the landowner prevails. 

Attorney fees are permissible in inverse condemnation cases in 

Montana. 

Second. The District alleges no attorney fee is proper in this 

case because there was no final offer as required by statute. This 

same objection was discussed in Olsen where the Court said: 

"To adopt such a theory here would contravene the intent 

of the statute and would violate the constitutional mandate. 

Article 11, Section 29, 1972 Constitution requires that a 

landowner be compensated for necessary expenses of litigation 

if he prevails. This constitutional directive cannot be 

frustrated by inadvertent or intentional violations of statutory procedure." 166 Mont. 147. 
While it is understandable the District in this inverse 

condemnation action did not wish to follow the statutory condemnation 

procedure, that may not be used to deny plaintiffs their attorney 

fees. In the instant case a $30,000 bid for work that would have 

cured the problem was rejected as being too costly. The amount the 

project was expected to cost was around $6,000. By inference it seems 

clear the $100,000 verdict exceeded the "final offer" of the 

condemnor. 

Defendant next questions whether such fee may be awarded where 

no evidence was taken as required by Crncevich v. Georgetown 

Recreation Corp., 168 Mont. 113, 541 P.2d 56, 59, 32 St.Rep. 963 

and First Security Bank of Bozeman v. Tholkes, Mont *-9 

547 P.2d 1328, 33 St. Rep. 341'. In Tholkes this Court vacated the 

judgment on attorney fees and remanded the cause for an evidentiary 

hearing on attorney fees. Here, since the state or political subdivision must pay the attorney fees, there is even stronger reason to 

remaidcl the instant case for consideration of the factors set out 

in Crncevich and Tholkes. Under the 1889 Constitution fees in 

condemnation cases were percentage contingency fees. In the private 

agreements the parties protected their own interests but where the 

fee is to be paid by the state there is no incentive for the landowner to bargain to keep the percentage reasonable. 

Clearly success is an important factor in setting an attorney 

fee. The "result secured" is among the factors set out in Crncevich 

and Tholkes, but it is not the only factor and all must be considered 

and weighed to arrive at a reasonable fee. We wish to make clear 

that there is absolutely no intent to imply in any way that the 

fee in the instant case is unreasonable, but only to require that the 
reasonableness of the fee be shown by evidence. Often those 

unfamiliar with the difficulties and complexities involved in 

an action, especially such a one as the instant inverse condemnation 

action, see only the lump sum figure for attorney fees and think it 

unreasonable. By producing evidence as to the amount of time and 

effort involved, that simplistic judgment should disappear. 

Issue (6). The sufficiency of the description of what was 

taken. It was clear to the jury,which had viewed the land,and 

the parties what land was involved, but as to third parties and 

subsequent takers a legal description of the land including a survey 

of metes and bounds should be furnished and made a part of the judgment. 

Judgment is affirmed in part, and remanded in part to the 

trial court for further hearings as directed by this opinion. 

We Concur: 

- -- 

Justices. 

Mr. Justice Frank I. Haswell: 

I concur in the result.