No. 12086 

IN THE 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. 

All plaintiffs in two flood damage cases bring this 

consolidated appeal from summary judgments granted in favor of 

a single common defendant by the district court of Silver Bow 

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 the western 

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 the area. This water flowed downhill following the contours of the land. In this process considera ble water damage and flooding occurred to the residences, 

household furnishing and personal effects of the various plaintiffs. Additionally, one of the plaintiffs claims damages for 

personal injuries. 

All of the plaintiffs reside in the Clark Street gulch 

area of the "Butte Hill". The "Butte Hill" slopes generally 

from north to south and is serrated by numerous gulches and 

gullies which also drain from north to south. 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 in an east-west direction and at least 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 to Clark Street comes both 

from the north or uphill area of the "Butte Hillr1 and from the 

east and west ridges sloping downhill to Clark Street at the 

bottom. 
At the north end of the Clark Street basin is the Anselmo 

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

is located at the Anselmo 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 at 715 

West Quartz occupied at the 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 suit herein appealed. Their dwelling is located about two 

blocks downhill to the south of defendant's Anselmo mine and 

immediately west of Clark Street; it is also a somewhat lesser 

distance downhill and to the south from the Little League ball 

park which is located on the slope between the Anselmo mine and 

these plaintiffs' residence. 

Still further south about four blocks downhill from the 

Andersan-Roope residence, the dwelling of the plaintiffs in the 

is 

second suit /located. This dwelling is also a two-family residence 

occupied by Ivan H. Freed as owner and the Don Collins family as 

tenants. This residence is located,' at 715 West Galena which is 

just off Clark Street to the west. 

There are no rivers, creeks, or streams in the area involved in this appeal, All of the flood waters fell from the sky 

in a 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 are not germane to this appeal). Each complaint 

names a single defendant, The Anaconda Company. Plaintiffs seek 

to recover for damage to their 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 artificial diversion of water on its property which resulted 

in the flooding and damages." 

Defendant's answer amounted to a general denial of any 

negligence on its part coupled with the affirmative defense that 

the damage was caused by an "Act of God". 

Pretrial discovery proceedings were carried on by the 

defendant consisting of written interrogatories to the plaintiffs 

and depositions taken from six of the plaintiffs. Following the 

filing of the answers to these interrogatories and the typewritten 

depositions, defendant moved for summary judgment in both actions. 

It is interesting to note that the presiding judge was familiar 

with the area and in ruling on the motions for summary judgment 

took judicial notice "of the genera 1 res identia 1 neighborhood 

here involved and the land contours and the properties of Defendant 

in that area, including the Anselmo 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 there was no issue 

of material fact and that defendant was entitled to judgment 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 for which defendant 
is legally responsible. Upon oral argument plaintiffs contended 

the following issues of fact exist concerning defendant's interference with natural drainage: (1) whether Anaconda's debris 

plugged the storm sewer drains; (2) whether an Anaconda mine car 

blocked the flowage of water; (3) whether Anaconda's Anselmo mine 

dump was so constructed as to divert drainage; and (4) whether 

the Little League ball park, situated on land owned by Anaconda 

and leased to the city of Butte, was constructed in such a manner 

as to approximate a giant "bathtub" impounding the water and 

suddenly releasing it in large quantities when the fence broke, 

thereby flooding the plaintiffs. 

Unfortunately for plaintiffs there is not one scrap of 

evidence to subs tantiate these claims. On oral argument plaintiffs ' 

counsel acknowledged that these claims were speculative with no 

evidentiary basis in the record. The district judge specifically 

concluded: 

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

channel the surface waters here involved but 

that the same flowed from the heavens as an 

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 resident ia 1 area 

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 for water 

so as to reroute the same to the lands of plaintiffs; and the Court having concluded that the 

waters of this sudden clou~burst were the common 

enemy of all the landowners in the area and none 

thereof were liable to his neighbors for the 

waters which drained and flowed downgrade thereon * * **" 

There is simply no evidence to the contrary and accordingly 

nothing to try before a jury. 
Rule 56 (c) , M.R.Civ.P., governs summary judgment and 

requires that such judgment be granted if: . 

"* * * the pleadings, depositions, answers to 

interrogatories, and admissions on file show 

that there is no genuine issue as to any material 

fact and that the moving party is entitled to a 

judgment as a 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, 154 Mont. 6, 459 P.2d 266,and citations therein. But 

where, as here, the record discloses no genuine issue as to any 

material fact, the burden is upon the party opposing the motion 

to present evidence of a material and substantial nature raising 

a genuine issue of fact. Flansberg v. Mont. Power Co., 154 Mont. 

53, 460 P.2d 263, and authorities cited therein. 

There is no factual basis in the record here to support 

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 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 C. Min. Co., 73 Mont. 465, 236 P. 1067; O'Hare v. Johnson, 

116 Mont. 410, 153 P.2d 888; State Highway ~omm'n v. Biastoch 

Meats, Inc., 145 Mont. 261, 400 P.2d 274. Accordingly, defendant 

is entitled to judgment as a matter of law. 
The summary judgments entered by Judge Freebourn in 

cause No. 56,789 on June 3, 1971 and in cause No. 56,791 on 

June 4, 1971, are affirmed. 

Associate Justice 

Associat-e Justices 

Hon. Jack Shanstrom, District 

Judge, sitting for Associate 

Justice Castles.