No. 83-477 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

PAUL AND BERNICE M. WILHEIM, 

husband and wife, 

Plaintiffs and Respondents, 

CITY OF GREAT FALLS, STATE OF 

MONTANA, et al. 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

James, Gray & McCafferty; Dennis McCafferty argued, 

Great Falls, Montana 

For Respondents: 

Cannon and Sheehy; Edmond Sheehy argued, Helena, 

Montana 

-- - 

Submitted: June 8, 1984 

Decided: Aagust 6, 1984 

Filed: 4ej;e , 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This case arises as an appeal from an order of the 

Eighth Judicial District Court, Cascade County, granting 

respondents' motion for a new trial following a jury verdict 

in a nuisance action. The jury returned a verdict finding 

respondents ninety percent comparatively negligent for 

damages and appellants ten percent negligent. The court 

determined that insufficient evidence existed to support the 

jury's verdict and that it was contrary to law. We affirm. 

The facts giving rise to this case are set forth as 

follows: the City of Great Falls has operated a city dump 

continuously in the same location since the 1950's. Before 

1969, appellants openly burned garbage at the dump site. In 

1973, respondents purchased property located on the Missouri 

River about one mile east of the dump site. Respondents 

then spent about $125,000 to build a home on the property. 

They visited the property a few times prior to the purchase. 

Respondents acknowledged, at the time of the purchase, 

that they were aware the City operated the dump about one 

mile from their property. At the time of the purchase the 

City operated a garbage shredder that apparently reduced 

blowing litter problems. Respondents testified prior to 

1977 they neither noticed nor suffered any problems caused 

by the dump. Only once, prior to 1977, did they observe any 

Litter blown onto their property. 

In 1977 the City employees operating the dump went on 

strike. During the strike, someone set fire to the dump. 

This fire burned a considerable portion of the dump and 

created great amounts of smoke and stench. The fire 
triggered many subterranean fires that continued to burn for 

the following two years. Respondents' home, located 

downwind from the dump, suffered damages due to the smoke. 

Following the strike, the City quit operating the 

garbage shredder. Litter began to blow onto respondents' 

property. For the two years the subterranean fires burned, 

the City tried many methods to control the fires. The City 

finally extinguished the fires by digging up the debris and 

hosing it down. This process also caused smoke to travel 

over respondents' property. 

Respondents presented evidence that in 1981 their well 

water became contaminated. They contended in the spring the 

runoff of water from the dump caused contamination to the 

groundwater on their property. They contended this problem 

never occurred prior to that time. Appellants submitted 

evidence that the well water contamination could have been 

caused by respondents' septic system. 

Respondents also presented evidence that the City 

deposited sewage sludge at the dump site. Respondents 

complained of times when the City failed to cover the 

sludge, thereby creating a stench. 

In a pretrial order, the court granted respondents' 

motion in limine to preclude any assumption of the risk 

instructions to the jury. The court reasoned that the jury 

could only decide the matter on a comparative negligence 

basis. The court permitted appellant to argue assumption of 

the risk as a basis for respondents' portion of the 

negligence that caused the damages. 

The jury returned a verdict on the nuisance action 

that found respondents ninety percent negligent and 
appellants ten percent negligent and awarded respondents 

$30,000 in damages. The jury also returned a verdict 

finding no inverse condemnation by the appellant. The court 

then ordered a new trial, for a finding that the facts 

failed to support the verdict and that it was contrary to 

law. 

Appellants raise two issues on appeal: 

(1) Did the District Court err in granting 

respondentst motion for a new trial? 

(2) Should the case be remanded to the District Court 

for the taxing of costs? 

Appellants first argue that the facts clearly provide 

a basis for the jury's determination that respondents were 

ninety percent contributorily negligent. Appellants claim 

the jury simply found that appellants were negligent by 

building their house near the city dump and could expect the 

problems that occurred. We disagree. In the instant case, 

we believe the court properly ordered a new trial. We find 

no abuse of discretion on the part of the trial judge in 

ordering a new trial. 

This Court will not disturb a trial court's ruling 

regarding motions for a new trial in the absence of a 

showing of an abuse of discretion. Brothers v. Town of 

Virginia City (1976), 171 Mont. 352, 558 P.2d 464. "A 

District Court has broad authority to grant or deny motions 

for a new trial." Lyndes v. Scofield (1979), 180 Mont. 177, 

589 P.2d 1000; Brothers, supra. If there exists 

substantial evidence to support the jury's verdict, then it 

must be sustained. Lyndes, supra; Brothers, supra. 

In the present case we hold that the District Court 
did not abuse its discretion in ordering a new trial. The 

evidence does not support the jury verdict which found the 

respondents ninety percent negligent. The jury found 

appellants were the proximate cause of the nuisance which 

included stench from uncovered sewage, smoke from fires at 

the dump, unconfined litter and ground water contamination. 

Appellants argue that respondents acted negligently in 

locating their house one mile from the dump. Because the 

parties failed to raise the issue on appeal, we will not 

consider the theories of assumption of risk or coming to the 

nuisance. 

We need not deal with appellants' second issue because 

it was contingent upon reversal of the trial court. 

We affirm the order of the District Court. 

We concur: 

- Chief Justice 
(&c/l/l%~%-- 

Honorable Robert M. Holter, 

District Judge, sitting in 

place of Mr. Justice John C. 

Sheehy.