No. 12086 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

DENNIS ROOPE, BETTY ROOPE, JAMES ROOPE, RICHARD ANDERSEN, and CHERYL ANDERSEN, Plaintiffs and Appellants, -vs

# - THE ANACONDA COMPANY, A Montana Corporation, Defendant and Respondent.



# ....................... IVAN H. FREED, DON COLLINS, and CORAL COLLINS, Plaintiffs and Appellants,-VSTHE ANACONDA COMPANY,Defendant and Respondent.
Appeal from: District Court of the Second Judicial District, Honorable James D. Freebourn, Judge presiding. Counsel of Record: For Appellants

### : Neil J. Lynch argued, Butte, Montana. For Respondents

### : Poore, McKenzie and Roth, Butte, Montana. Robert F. Poore argued, Butte, Montana.
Submitted: February 

### 15, 1972 Decided:

## MAR 8

# -1gp

### Mr. Justice Frank 

### I. Haswell delivered the Opinion of the Court.
Allplaintiffs in two flood damage cases bring this consolidated appeal from summaryjudgments granted in favor of
a single common defendant by the district court of SilverBow County, the Hon. James D. Freebourn presiding. In midafternoon of July 

### 28, 1970, an extremely severe rain and hail storm of lFcloudburs t" proportions hit thewestern residential area of Butte, Montana. The principal part of this storm lasted about half an hour and caused a tremendous amount of hail and water to fall in thearea. This water flowed downhill following the contours of the land. In this process considerablewater damage and flooding occurred to the residences, household furnishing and personal effects of thevarious plaintiffs. Additionally, one of the plaintiffs claims damages for personal injuries. Allof the plaintiffs reside in the Clark Streetgulch
area of the "Butte Hill". The "Butte Hill" slopes generally from north tosouth and 

### is serrated by numerous gulches and gullies which alsodrain from north tosouth. These gulches and gullies, with their accompanying ridges and slopes, are largely covered by residential properties with paved streets and alleys. The Clark Street gulch area here involved 

### is about four blocks wide inan east-west direction and atleast three or four times as long in a north-south direction. Clark Street occupies the bottom of a north-south gully which is bounded by ridges on both the east and the west. Drainage toClark Street comes both from thenorth or uphill area of the "Butte Hillr1and from the east and west ridges sloping downhill toClark Street atthe bottom.Atthenorth end of the Clark Street basin 

### is the Anselmo mine of the defendant, The Anaconda Company. A large waste dump 

### is located attheAnselmo mine. Below the dump there 

### is a Little League baseball park and bleachers, surrounded by a wooden fence. Still further downhill 

### is located a two-family residence at715 West Quartz occupied atthe time of the cloudburst by the Richard Anderson and Dennis Roope families, the former as owners and the latter as tenants. Members of these two families are the plaintiffs in one suitherein appealed. Their dwelling 

### is located about two blocks downhill tothe south of defendant's Anselmo mine and immediately west of Clark Street; it 

### is alsoa somewhat lesser distance downhill and to the south from theLittleLeague ball park which 

### is located on the slopebetween theAnselmo mine and these plaintiffs' residence. Stillfurther south about four blocks downhill from the Andersan-Roope residence, the dwelling of the plaintiffs in the 

### is second suit /located. This dwelling 

### is alsoa two-family residence occupied by Ivan H. Freed as owner and theDon Collins family as tenants. This residence 

### is located,'at715 West Galena which 

### is just off Clark Street tothe west. There areno rivers, creeks, or streams in the area involved in this appeal, Allof the flood waters fell from the sky ina sudden cloudburst of unprecedented proportions. The complaints in both actions were filed about a month are after the cloudburst and/ssentially identical (except as to damages which arenot germane tothis appeal). Each complaint
names a single defendant, The Anaconda Company. Plaintiffs seek torecover for damage totheir residences and personal property from water that flooded into their dwellings during the cloudburst.Plaintiffs claim negligence on the part of defendant in "creating
an artificialdiversion of water on 

### its property which resulted in the flooding and damages." Defendant's answer amounted toa general denial of any negligence on 

### its part coupled with the affirmative defense that the damage was caused by an "Act of God". Pretrialdiscovery proceedings were carried on by the defendant consisting of written interrogatories to the plaintiffs and depositions taken from sixof the plaintiffs. Following the filing of the answers tothese interrogatories and the typewritten depositions, defendant moved for summary judgment inboth actions. 

### It 

### is interesting tonote that the presiding judge was familiar with the area and in ruling on the motions for summary judgment took judicial notice "of the genera1residentia1neighborhood here involved and the land contours and the properties of Defendant in that area, including theAnselmo Mine Dump which existed in 

### its present condition for many years". Defendant's motion for summary judgment in each of the two suits was granted following a consolidated hearing. All plaintiffs now appeal from the summary judgments granted. The controlling issue in this appeal 

### is whether there 

### is any genuine issue of material fact precluding summary judgment for the defendant. The district court held therewas no issue of material fact and that defendant was entitled tojudgment as
a matter of law. We affirm. The gist of plaintiffs' contention 

### is that defendant, The Anaconda Company, interfered with the natural drainage in the area and this, combined with an "Act of God" consisting of the cloudburst, caused plaintiffs' flooding and damage forwhich defendant

### is legally responsible. Upon oral argument plaintiffs contended the following issues of fact exist concerning defendant's interferencewith natural drainage: (1) whether Anaconda's debris plugged the storm sewer drains; 

### (2) whether anAnaconda mine car blocked the flowage of water; 

### (3) whether Anaconda's Anselmo mine dump was so constructed as todivert drainage; and 

### (4) whether theLittleLeague ball park, situated on land owned by Anaconda and leased tothe cityof Butte, was constructed in such a manner
as toapproximate a giant "bathtub" impounding thewater and suddenly releasing it in large quantitieswhen the fence broke, thereby flooding the plaintiffs. Unfortunately for plaintiffs there 

### is not one scrap of evidence to substantiate these claims. On oral argument plaintiffs

## ' counsel acknowledged that these claims were speculative with no evidentiary basis in the record. The districtjudge specifically concluded: 

# '*** that the Defendant did not dam up or

channel the surface waters here involved but that the same flowed from the heavens asan Act of God and then followed the general downgrade contours of Defendant's properties which had been established in the lawful business of mining and off therefrom onto the streets, alleys and private properties of the residentia1area here involved; and further, having considered the representations of plaintiffs that Defendant had allegedly diverted the natural flow of waters by a small mine timber truck which does not and cannot constitute a true dam or channel forwater soas toreroute the same to the lands of plaintiffs; and theCourt having concluded that the waters of this sudden clou~burst were the common enemy of allthe landowners in the area and none thereof were liable tohis neighbors for the waters which drained and flowed downgrade thereon 

# ****" There 

### is simply no evidence tothe contrary and accordingly nothing to try before a jury.Rule 56(c)

## ,M.R.Civ.P., governs summary judgment and requires that suchjudgment be granted if:

. 

# "*

# ** the pleadings, depositions, answers to interrogatories, and admissions on fileshow that there 

### is no genuine issue as toany material fact and that themoving party 

### is entitled toa judgment asa matter of law. 

# ***" The burden of establishing the absence of any issue of material fact 

### is on the party seeking summary judgment. Byrne
v. Plante, 154Mont. 6, 459 P.2d 266,and citations therein. But where, ashere, the record discloses no genuine issue as toany material fact, the burden 

### is upon the party opposing themotion topresent evidence of a material and substantialnature raising
a genuine issue of fact. Flansberg v. Mont. Power Co., 154Mont. 53, 460 P.2d 263, and authorities cited therein. There 

### is no factual basis in the record here tosupport plaintiffs

## ' allegations of negligence on the part of defendant. The record simply shows an unprecedented cloudburst with the resulting waters drained downhill by gravity following the topography and contours of the land. An uphill property mer
owes no duty tohis downhill neighbor toprevent the encroachment of such vagrant or surfacewaters fromhis property onto his neighbor's. Le Munyon v. Gallatin Valley Ry. Co., 60 Mont. 517, 199 P. 915. This Le Munyon rulehas been reviewed and affirmed from time to time in the followingMontana cases: Sylvester v. Anaconda C. Min. Co., 73 Mont. 465, 236 P. 1067; O'Hare v. Johnson, 116 Mont. 410, 153 

### P.2d 888; StateHighway ~omm'n v. Biastoch Meats, Inc., 145Mont. 261, 400 P.2d 274. Accordingly, defendant 

### is entitled tojudgment asa matter of law.

### The summary judgments entered by Judge Freebourn in
cause No. 56,789 on June 

### 3, 1971and incauseNo. 56,791 on June 

### 4, 1971, areaffirmed.

Associate Justice

Associat-e Justices

Hon. Jack Shanstrom, District Judge, sitting forAssociate JusticeCastles.