Formicove, Inc. v. Burlington Northern, Inc.

Yo. 83-143

I N THE SUPREME COURT O F THE STATE OF MONTA??A

1983

FORMICOVE, INC.,

P l a i n t i f f and A p p e l l a n t ,

-vs-
BURLINGTON NORTHERN, INC .,
D e f e n d a n t and R e s p o n d e n t .

APPEAL FROM: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of C a s c a d e ,
T h e H o n o r a b l e J o h n M. M c C a r v e l , Judge p r e s i d i n g .

COUNSEL OF RECORD:

For Appellant:

D z i v i , C o n k l i n & Nybo; S u s a n J. R e b e c k , G r e a t F a l l s ,
Montana

F o r Respondent:

C h a r l e s C. Dearden, B i l l i n g s , Montana

Submitted: September 21, 1933

Decided: December 20, 1 9 8 3

Filed:

Clerk
Honorable 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 claims BN's failure to maintain its culverts caused
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 surface waters and granted RN summa-
ry judgment.
The dispositive issue here is whether the LeMunyon case
correctly held that section 69-14-240, MCA, imposes no sta-tu-
tory duty on a ra.ilroad with regard to obstruction of surface
waters. We believe the LeMunyon holding is manifestly incor-
rect and must therefore be overruled.
Relying on definitions of surface waters and water-
courses Laid down in F0rdha.m v. 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 water-
course. 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 protect his land, the Court
concluded the rule was not altered by what was then section
4362, Revised Codes, a codification of a 1903 Act, now sec-
tion 69-14-240(1), MCA. That section then provided:
"It shall be the duty of every corpora-
tion, company, or person owning or oper-
ating 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
sufficient outlet 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
that none of the drains or ditches 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 afore-
said. . . ."
(Emphasis added.)
The Court held:
". . . That portion of section 4362,
supra, included within the exception or
proviso, which mentions 'natural channel'
or 'outlet1 refers back to the first or
main body of the section, fixing the
requirements of railroad. corporations as
to ditches, drains, and watercourses, and
means 'ditches,' 'drains,' or 'water-
courses' as therein expressed, and hence
the provisi.ons of 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-ature can be deter-
mined from the plain mea.ning of words used in a statute,
courts may not go further and apply any other means of inter-
pretation. 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 ascer-
tain and declare what is in terms or in substance contained
therein. We may not insert what has been omitted or omit
what has been inserted. Section 1-2-101, MCA.
The statutory language before the proviso required
construction and maintenance of ditches and drains to connect
with "ditches or drains or watercourses" to carry off water
impounded hy a railroad embankment. The proviso was a limi-
tation on the general rule: Drains and ditches will be re-
quired only to drain off accumulated wa.ter whose "natural
channel or outlet" has been destroyed or impaired by the
embankment. The LeMunyon opinion equated the words "natural
channel or outlet" in the proviso to the words "ditches or
drains or watercourses" in the principal clause and apparent-
ly concluded from this that the word "watercourses" was
intended to be included in the proviso and that therefore the
statute did not contemplate surface water, only watercourses.
This severely limiting construction overlooks the
obvious principal 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.g and draininq off water accumulated
upon nonrailroad property. Clearly the statute was intended
to deal with impounded water of any kind, without regard to
the nice distinction made between surface water and a water-
course in Fordham, 30 Mont. at 431, 76 P. at 1043:
". . . If the flood water becomes severed
from the main current, or leaves the same
never to return, and spreads out over the
lower ground, it becomes surface water.
But if it forms a continuous body with
 the water flowing in the ordinary chan-
nel, 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 or watercourses" in the principal clause. The context
is n.ot even the same. The latter words are used to describe
the places to which the vagrant water is to be returned. The
former words are used to describe the places from which 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 or watercourses" 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 not be sustained. To do so
we would be required to give meaning to the word "watercours-
es" and to ignore the words ditches and drains. In constru-
ing a statute we 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 stat-
ute to watercourses.
 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 that makes a statute
void or treats a statute as mere 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 codifica-
tion of the common enemy rule.
Viewing the statute as written, rather than as artifi-
cially 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 em-
bankments in favor of the adopted maxim, " [olne must so use
his own rights as not to infringe upon the rights of anoth-
er." 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 sepa-
rate 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 equal
treatment, stare decisis does not require that we follow a
manifestly wrong decision. State v. Fischl (1933), 94 Mont.
92, 20 P.2d 1057; State v. District Court 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.s it
held that section 69-14-240, MCA, imposes no d.uty on a rail-
road for obstruction of surface waters.
Reversed and remanded.

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

We concur:

District Judge, sifztihg in
place of Mr. Justice Frank R .
Morrison, Jr.
 Mr. Justice Fred J. Weber respectfully dissents as
follows:
I dissent from the majority holding that - Munyon and
Le
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 in managing 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. 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 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 judgment as a matter 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 - Munyon and 62 years of precedent,
Le
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 surface waters.
The majority cites Missouri case law to bolster its
discovery of legislative intent regarding surface water. 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:
 "It shall be 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 or water courses, so as to afford sufficient
outlet to drain off the water, including surface
water, along such railroad whenever 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, - was
Cox approved by the 1907
legislative addition of "surface water" to its statute.
Montana had the same legislative opportunity as Missouri, 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 railroad without 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 adjoining property 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 of Missouri 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
its water carrying capacity,' Smithpeter v. 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 no
 ditch, 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 surface waters
from adioining property has been created here. I believe 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's holding. The District Court's summary judgment in
favor of the defendant was 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
District Court 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 as much as though written into
it; and the change made in construction will 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 reconstruction of the statute and reversal of Le
Munyon should not be affected by today's ruling.
I would affirm the District Court and leave the changing
of the statute to the legislature.
/'--TI l -
/
I join in the foreqoinq d

f