No. 88-433
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
DALE E. GUENTHER and DORIS H.
GIJENTHER ,
Plaintiffs and Appellants,
-vs-
DONALD L. FINLEY and PAULINE E.
FINLEY,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif B. Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hedman, Hileman & Lacosta; Donald E. Hedman, Whitefish,
Montana
For Respondent:
Gary R. Christiansen, Kalispell, Montana
Submitted on Briefs: Feb. 9, 1989
Decided: March 1 4 , 1989
F .l e d . t
j
B
" Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
The decision of the District Court of the Eleventh
Judicial District was appealed by the plaintiffs Guenther
from the jury verdict in favor of the defendants Finley
denying the plaintiffs' claim for trespass and damages. The
Guenthers claim that the defendants' dam caused water to back
onto the property of the plaintiffs for a number of years,
causing extensive damage to the land and destroying the
habitability of plaintiffs' home.
The issue is whether substantial credible evidence
exists to support the jury verdict rendered in this case.
Plaintiffs bought .75 acre in 1962. Defendants pur-
chased their property south of the plaintiffs' property in
July 1980. The two properties are adjacent to each other and
divided by Elk Park Road, a Flathead County Road. Mooring
Creek runs north to south through both properties. The
county maintains a culvert which runs under the county road.
Baltrusch, an owner prior to the defendants Finley,
constructed a dam on the property now owned by the defen-
dants. The dam causes the water from Mooring Creek to back
up onto defendants' property.
Plaintiffs allege that the dam has caused the water to
back onto their property upstream, causing a trespass.
According to Guenthers, prior to the time that the dam was
built on the Finleys' property, the land owned by the
Guenthers was appraised at $40,000 to $50,000 and was "the
prettiest little place I ever saw." Subsequently, though,
the dam has caused flooding of the appellants' land, creating
swamp-like conditions and making the land and house complete-
ly uninhabitable. Some of the problems allegedly caused by
the flooding are cattails that are out of control, problems
with spiders and worms and mosquitoes, damage to the house
from the proximity of the water, and a sewer-like smell.
Appellants contend that flooding occurred on their
property in 1979, 1980, 1984, 1985, and 1986. In 1979 when
the flooding occurred, Guenthers called the county complain-
ing that the culvert was plugged with shale rock. The county
cleaned out the culvert. In 1980, Guenther alleged that he
called the owner of the property now owned by defendants,
Raltrusch, to complain and the water problem thereafter
disappeared. Appellants assumed that Baltrusch took some
remedial action but did not follow up on their complaint and
so do not really know.
In three of the next six years, appellants claim there
was a flooding problem; however, they never went to the
Finleys to speak with them. In 1985, the renter of the
Guenther property had a problem with flooding and called the
county to have the problem remedied. Not until April 8,
1986, did the Guenthers go directly to the Finleys, believing
that the dam which had been in existence since 1980 could
have been the cause of the flooding. At that time, Dale
Guenther did not go to see defendants to discuss the issue
but was found on the Finleys' property by Donald Finley
looking at the area near Elk Park Road. Upon confronting
Guenther and his attorney, defendant was asked if the Finleys
would buy the Guenthers' property. Prior to this there had
been no indication that the spring flooding of Guenthers'
property was caused by the dam on the property owned by
Finleys.
The dam, which was constructed in 1980, was not altered
after the initial construction by Baltrusch. Nor were any
changes or additions made by the Finleys.
The issue with which this Court is faced is whether
there was substantial credible evidence from which the jury
could make a proper determination in this case. We hold that
there was such substantial credible evidence.
There is some dispute as to what role the culvert
played in the flooding of appellants' property. The culvert
is built off the ground. Respondents' expert testified that
the height of water on appellants' land would have to reach a
depth of 1.25 feet before it reached the bottom of the cul-
vert allowing the water to drain. The culvert is eighteen
inches in diameter. During the winter and spring the culvert
easily dams with mud, muck, ice, gravel, shale, and silt.
When the expert for the respondents observed the culvert, it
was plugged to ten inches of the eighteen. In this respect,
according to respondents, the culvert itself acts as a dam.
Any water on the Guenthers' property would have to reach the
height of over 1.25 feet before it would drain from the
property downstream to the Finleys' property. Furthermore,
the water level on the appellants' property was .11 feet
higher than on the respondents' property when measurements
were taken in 1986, making flooding of appellants' property
from respondents' dam unlikely.
Appellants, on the other hand, contend that there is a
difference of 2.45 feet between the top of the dam's spillway
and the bottom of the culvert. Naturally, therefore, any
time that the water reaches the spillway, water will flood
the appellants' land by way of the culvert. In past years
water has reached the spillway. Also, because the law of
physics demands that "water seeks its own level," the level
of water on the Finleys' property and the level of the water
on the Guenthers' property must he the same height. There-
fore, any time that the water is dammed on the Finley proper-
ty, raising the natural water level, the water is the same
height on the Guenther property and the water is trapped on
the Guenther property, creating a trespass.
The facts set forth by appellants, in their view,
clearly show evidence of a trespass and damages. Restatement
(Second) of Torts, S 158, properly sets out the elements of
the tort of intentional trespass to real property:
One is subject to liability to another
for trespass, irrespective of whether he
thereby causes harm to any legally
protected interest of the other, if he
intentionally (a) enters land in the
possession of the other, or causes a
thing or a third person to do so, or (b)
remains on the land, or ((1) fails to
remove from the land a thing which he is
under a duty to remove.
We adopted Restatement S 158 in Branstetter v. Beaumont
Supper Club, Inc. (Mont. 1986), 727 P . 2 d 933, 43 St.Rep.
1981, relying also on the Restatement's definition of "in-
tent" "to denote that the actor desires to cause the conse-
quences of his act, or that he believes that the consequences
are substantially certain to result from it." Branstetter,
727 P.2d at 935, 43 St.Rep. at 1983-1984, quotinq Restatement
(Second) of Torts, S 8A.
Because the dam was built before the Finleys purchased
their property, it is clear that they did not intentionally
cause any water to enter Guenthers' land. Furthermore, the
jury found that after reviewing the conflicting evidence, the
Finleys were not liable for intentional trespass. Assuming
arguendo that respondents caused the flooding of appellants'
land, there is still no showing that they recklessly or
negligently caused. the consequences which resulted in the
flooding.
Restatement (Second) of Torts, 5 165, states:
One who recklessly or negligently, or as
a result of an abnormally dangerous
activity, enters land in the possession
of another or causes a thing or third
person so to enter is subject to
liability to the possessor if, but only
if, his presence or the presence of the
thing or the third person upon the land
causes harm to the land, to the posses-
sor, or to a thing or a third person in
whose security the possessor has a
legally protected interest.
The jury instruction adopted by the District Court was as
follows:
You are instructed that a person may be
subject to liability for trespass if he
enters land in the possession of the
other, or causes a thing, such as water,
to do so or fails to remove from the
land a thing, such as water, which he is
under a duty to remove.
If you find that Defendants' trespassed
on Plaintiffs' land then you must deter-
mine what damages, if any, have been
sustained and award them an amount which
will reasonably compensate them in
accordance with these instructions.
The foregoing instructions clearly discussed the Re-
statement application of reckless or negligent trespass.
After reviewing the evidence presented before them, the
jury found that there had been no trespass by the respondents
and that consequently there were no damages. Upon motion by
the appellants for a judgment NOV, the District Court denied
the motion, relying on the findings of the jury.
While there may be some question whether the flooding
of appellants' land was caused by respondents, it is within
the province of the jury to decide in whose favor the evi-
dence lies. In the order of the District Court denying the
motion for judgment NOV, Judge Erickson stated that the court
was satisfied that the dam on the respondents' property had
the potential for flooding the appellants' property if filled
to the level. of the spillway. However, the factfinder found
that there was no trespass here. Moreover, there was evi-
dence that the prior flooding of appellants' property may
have occurred from the existence of blockage in the culvert.
The jury decided that from the evidence offered they were not
convinced that the existence of respondents' dam caused any
damage to appellants.
In reviewing the judgment of the trier of fact, the
standard of review is:
where a fact issue or issues are pre-
sented before either a court sitting
alone, or with a jury, and there is
substantial evidence to support the
findings of the court or the jury ver-
dict, such findings or verdict are
conclusive on appeal.
Johnson v. St. Patrick's Hospital (1968), 152 Mont. 300, 307,
448 P.2d 729, 732-733; Matter of Estate of Holm (19791, 179
Mont. 375, 588 P.2d 531; Big Sky Livestock, Inc. v. Herzog
(1976), 171 Mont. 409, 558 P.2d 1107. There is substantial
evidence here to support the jury verdict.
We concur: